HAMMAD AHMED versus ABDUL MAJEED & ORS. on 3 April 2019

[2019] 6 S.C.R. 402

SUPREME COURT REPORTS[2019] 6 S.C.R. 402

[2019] 6 S.C.R.

A

HAMMAD AHMED

v.

ABDUL MAJEED & ORS.

(Civil Appeal Nos. 3382-3383 of 2019)

B

APRIL 03, 2019

[UDAY UMESH LALIT AND HEMANT GUPTA, JJ.]

Succession – To the Office of Chief Mutawalli – Rule ofPrimogeniture – When not applicable – One ‘HAM’ started theHamdard Dawakhana as sole proprietor – Died leaving behind hisCwife and two sons, ‘AH’ and ‘MS’ – These three executed Deed in1948 to manage the affairs of Hamdard – ‘AH’ became the solesurviving Wakif Mutawalli in terms of the 1948 Deed – In 1964, theWakif Mutawalli appointed his two sons ‘AM’ and ‘HA’-appellantas Mutawallis – Wakif Mutawalli issued various declarations fromDtime to time for working of Hamdard – On the basis of suchdeclarations, a comprehensive declaration was issued in 1973amending the 1948 Deed – Wakif Mutawalli died – ‘AM’ becamethe Chief Mutawalli –’AM’ died – Dispute between the parties as towho should discharge the duties of Chief Mutawalli of now HamdardLaboratories (India) – Appellant filed suit inter alia for declarationEthat respondent no.1 is no longer Mutawalli under the 1948 Deed– Respondent No.2 also filed suit inter alia seeking removal of theappellant and his son as Mutawallis – Respondent nos.1 & 2 aresons of ‘AM’, elder brother of the appellant – Respondent No.2’sapplication u/Or.XXXIX, r.1&2 was dismissed while that of theFappellant was allowed by the Single Judge holding that the senior-most male descendant in the line of succession of Wakif Mutawalliis prima facie entitled to be Chief Mutawalli– Division Benchapplying the rule of primogeniture set aside the order holding thatafter the death of the Chief Mutawalli, the senior most male in hisline and also a Mutawalli is entitled to succeed to his office – Held:GRule of primogeniture is not applicable to the Muslims as per thePersonal Law – Entire 1948 Deed as amended in the year 1973 hasto be read together to find out the process of appointment of ChiefMutawalli – At least two provisions of the 1973 Deed are that thesenior most male descendant in the line of succession of Wakif H

Mutawalli shall be Chief Mutawalli – Action of the Wakif Mutawalliin nominating the senior most male descendant ‘AM’ and his youngerson-the appellant as Mutawallis in terms of the 1948 Deed showsthat his both lines of successors were treated equally – Since, theBoard of Trustees was contemplated to be five Mutawallis includingWakif Mutawalli or Chief Mutawalli, therefore, the induction ofgrandsons (Respondent Nos.1 & 2 and the sons of the appellant)also was not in order of date of birth but keeping in view therepresentations to both sons of the Wakif Mutawalli (‘AM’ and‘HA’) – Therefore, the 1948 Deed as amended does not show theapplicability of rule of primogeniture but equal representation tothe heirs of both sons of Wakif Mutawalli – Order of the DivisionBench set aside and that of the Single Judge, restored – Code ofCivil 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-interimmandatory injunction – Grant of – Held: Ad interim mandatoryinjunction is to be granted not at the asking but on strongcircumstance so that to protect the rights and interest of the partiesso as not to frustrate their rights regarding mandatory injunction.

Allowing the appeals, the Court

Conclusion

HELD: 1.1 The order of Division Bench cannot besustained. The nature of Hamdard was settled that it is not Wakfas is defined in the Wakf Act,1995 and that the property, movableand immovable, belonging to it would be deemed to be vested inits governing body. No merit in the argument that the consent ofthe parties in an appeal against an interim order passed on anapplication under Order XXXIX Rules 1 and 2 of the Code relatedto issues which are required to be framed after completion of thepleadings in a suit. The appeal was directed against interiminjunction, therefore, the expression “issue” used in para 3 ofthe consent order is not the issues in the suit, but the questionswhich arise for consideration at the ad-interim stage. The partiesagreed that the question of considerable importance relates tothe appointment of Chief Mutawalli at the time of considerationof an interim application. Both the courts have examined theDeeds to consider as to whether the Appellant can be said to beChief Mutawalli. [Paras 37- 39][428-A; 429-B-D]

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A1.2 The rule of primogeniture is not a rule applicable tothe 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 ofthe Trustee then the deceased Trustee will be replaced by hiselder son and in case of death of other Trustee he will be replacedBby his elder son (Clause 3 as reproduced above). Similarly, Clause4 of the Deed is that the Trustees of the Trust will be appointedfrom their sons who will be eldest in age and after that from thesons of their sons, the elder son will be appointed as Trustee.[Para 42][430-B-D]

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1.3 The 1973 Deed is not a new document but includesamendments in the 1948 Deed based upon the declarations madeby 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 fullstop after the word “mutawalli” and thereafter, new line starts.DBut in the 1973 Deed (Annexure P-1), the full stop is missing. Itappears to be an inadvertent omission as the Deed as amendedin the year 1973 in the absence of full stop is not coherent andappears to be incomplete. [Paras 43, 44][430-E; 431-A-B]

1.4 The well-known principle of interpretation of documentEis that one line cannot be taken out of context. It is a cumulativereading of entire document which would lead to one conclusionor the other. Therefore, the entire 1948 Deed as amended in theyear 1973 has to be read together to find out the process ofappointment of Chief Mutawalli. [Paras 45, 46][431-B; 432-D]

F1.5 The argument that the rule of primogeniture is explicitin the amended clauses of the 1948 Wakf Deed, as the eldest sonand after his death his son has been given the preferentialtreatment than the other male descendants, is not tenable. Clause1 of 1973 Deed is that the senior most among the maledescendants of the Wakif-Mutawalli holding an office of MutawalliGwill be the Chief Mutawalli. The Clause 3 of the same deed isthat the First Chief Mutawalli will be appointed by Wakif Mutawallithereafter the senior most male descendant in line of succession(of Wakif Mutawalli) and then holding an office of Mutawalli willbe the Chief Mutawalli. Thus, at least two provisions of the 1973

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Deed are that the senior most male descendant in the line ofsuccession of Wakif Mutawalli shall be Chief Mutawalli.[Paras 47, 48][432-E-G]

1.6 The argument that the constitution of the Board ofMutawallis on 04.07.1995 negates the argument raised by theAppellant that the senior most male descendant has to be theChief Mutawalli and second in line as Nazir (Secretary). No doubtin the constitution of the Board on 04.07.1995, the second seniormost male descendant was not nominated as Nazir (Secretary)but such fact alone will not negate the various provisions of thedocument which support the contention raised by the Appellantthat it is the senior most male descendant who shall be the ChiefMutawalli. The action of the Wakif Mutawalli in nominating thesenior most male descendant ‘AM’ and his younger son-theAppellant as Mutawallis in terms of 1948 Deed shows that hisboth 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 amended1948 Deed by Wakif Mutawalli from time to time. Since, the Boardof Trustees was contemplated to be five Mutawallis includingWakif Mutawalli or Chief Mutawalli, therefore, the induction ofgrandsons was not in order of date of birth but keeping in viewthe representations to both sons of the Wakif Mutawalli.Therefore, the 1948 Deed as amended does not show theapplicability of principal of rule of primogeniture but equalrepresentation to the heirs of both sons of Wakif Mutawalli. Theargument that there is delay and laches on the part of the Appellantto dispute the existing mechanism of the management is againnot tenable. The entire argument is based upon the constitutionof the Board on 04.07.1995. Mere failure to dispute theconstitution of Board would not mean that the 1948 Deed or 1973Deed is rendered otiose. The constitution of the Board by theWakif Mutawalli was in relation to the requirements of theHamdard to carry out the functions of the Board but that doesnot rewrite the Rule of Succession contemplated afteramendments in 1948 Deed in the year 1973. [Paras 51, 54][433-E-G; 434-D-E]

1.8 1973 Deed provided for disqualification of convictionin criminal case involving moral turpitude. None of the criminal A

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Aprosecution launched against the Appellant have ended up inconviction, therefore, there is no disqualification attached to theAppellant at this stage. [Paras 55][435-F]

1.9 The ad interim mandatory injunction, is to be grantednot at the asking but on strong circumstance so that to protectBthe rights and interest of the parties so as not to frustrate theirrights regarding mandatory injunction. The argument that underOrder XXXIX Rules 1 and 2 of the Code, the Court has thejurisdiction to maintain the status of the parties on the date offiling of the suit or on the date of passing of the order but cannotdirect the parties to do something which was not in existence atCthe time of filing of the suit, is not a general rule of universalapplication. The nature of the orders claimed by the Appellantare not passed ordinarily in a routine manner as the Plaintiff isrequired to have a case which should be of higher standard thanmere prima facie case. But in view of the agreement between theDparties, as recorded by the Division Bench in an earlier round oflitigation the primary question was agreed to be that who is to actas Chief Mutawalli. Both, Single Judge and the Division Benchhas examined such question only. Even, before Supreme Court,the parties have argued primarily on the question as to who shallbe Chief Mutawalli. Therefore, a prima-facie opinion would leadEto consequential order in respect of management of the affairs ofthe Hamdard. [Paras 57, 58][434-H; 435-A; G-H; 436-A-C]

1.10The order passed by Division Bench is set asideand that of the Single Bench is restored. The parties willadditionally continue with the arrangements arrived at in respectFof the banking operations of the Hamdard in terms of theresolution dated 28.04.2015. It is needless to say that decisionsof the suits shall be on the basis of evidence to be led by theparties as the present order is in the context of deciding ad interiminjunction application only. An endeavour shall be made to decideGthe suit expeditiously by granting maximum period of threemonths to each of two sets of parties to conclude their respectiveevidence so that an early decision is arrived at to finally concludethe first stage of disputes between the parties. [Paras 59-61][436-C-F]

Faqruddin v. Tajuddin(2008) 8 SCC 12 : [2008] 9SCR 377 ; Delhi Development Authority v. DurgaChand Kaushish (1973) 2 SCC 825 : [1974] 1 SCR535 ; 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 andOthers (1990) 2 SCC 117 : [1990] 1 SCR 332 ; DollarCompany, Madras v. Collector of Madras (1975) 2SCC 730 : [1975] Suppl. SCR 403 ; Wander Ltd andAnother v. Antox India P. Ltd. (1990) Suppl. SCC 727;Mohd. Mehtab Khan and Others v. Khushnuma IbrahimKhan and Others (2013) 9 SCC 221 : [2013] 3 SCR359; Samir Narain Bhojwani v. Arora Properties andInvestments and Another 2018 (10) SCALE 33 ; TheSecretary of State for India in Council v. Syed AhmadBadsha Sahib Bahadur (1921) LW Mad.188 (DB);TheSecretary of State for India in Council vs. Syed AhmadBadsha Sahib Bahadur (1921) 14 L.W. 128 (F.B.)– referred to.

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ACIVIL APPELLATE JURISDICTION: Civil AppealNos. 3382-3383 of 2019

From the Judgment and Order dated 27.11.2018 of the High Courtof Delhi at New Delhi in FAO (OS) Nos. 278 and 280 of 2017.

Kailash Vasdev, Sr. Adv., Shreyans Singhvi, Ms. Ekta Mehta,BUmrao Singh Rawat, Ms. Jaikriti S. Jadeja, Advs. for the Appellant.

Mukul Rohatgi, Sudhir Nandrajog, Sr. Advs., Saket Sikri, SimranMehta, Ms. Ekta Sikri, Anirudh Bakhru, Vikalp Mudgal, Ms. RanjeetaRohatgi, Ms. Sharmila Upadhyay, Satinder Singh Bawa, Sudarsh Menon,Rajesh Rathod, Deepak Goel, Bobby Lao, Ms. Arunima Dwivedi,CAdvocates for the Respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. Leave granted.D

2. The challenge in the present appeals is to an order passed bythe Division Bench of the High Court of Delhi on 27.11.2018 wherebyan application filed by the Plaintiff under Order XXXIX Rules 1 and 2 ofCode of Civil Procedure, 1908[1] was dismissed. The Division Bench hasset aside an order passed by the learned Single Bench on 25.10.2017.E

3. The dispute between the parties at this stage is as to who shoulddischarge the duties of Chief Mutawalli of Hamdard Laboratories (India)[2]earlier known as Hamdard Dawakhana, after the death of previousundisputed Chief Mutawalli - Abdul Mueed on 19.03.2015.

4. The Appellant filed Civil Suit No. 211 of 2017 on 08.05.2017,Fwhereas Respondent No. 2 filed Civil Suit No. 162 of 2017 on 29.03.2017.The suit of the Appellant is for declaration, prohibitory injunction and forother reliefs. The Appellant asserted that after death of Abdul Mueed,Chief Mutawalli on 19.03.2015, the Appellant being living senior mostmale direct successor of Wakif Mutawalli took over the Office of ChiefGMutawalli on 20.03.2015 when an office order was issued to this effectby him. The Respondent Nos. 1 and 2 are the defendants in the suitfiled by the Appellant. Such Respondents are sons of former Chief 1 Code2 HamdardH

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Mutawalli late Shri Abdul Mueed, elder brother of the Appellant. TheRespondent No. 1 – Abdul Majeed also issued an office order on23.03.2015, appointing himself as Chief Mutawalli. The RespondentNo. 1 issued letters on the basis of such declaration on 23.03.2015 tovarious authorities including Banks. It is in this background; the Appellanthas sought declaration that the Respondent No. 1 is no longer Mutawalliunder the Wakf Deed[3] dated 28.08.1948 as amended from time to timeon account of breach of his obligations under the said Deed and to issuea decree in nature of permanent injunction restraining Respondent No.1to continue as Mutawalli of Hamdard. The Appellant also claimed thatall decisions, orders issued by Respondent Nos. 1 and 2 jointly or severallyafter 20.03.2015 are null and void and of no effect.

5. The Appellant filed an application under Order XXXIX Rules 1and 2 read with Section 151 of the Code along with the suit claiming thefollowing interim directions:

“a) To release the salaries and other dues of all the Mutawallisof HLI (including Defendant No. 4) from September, 2016 tilldate.

b) Direct all the banks as stated in para no. 2 of the application,to allow the plaintiff to operate accounts maintained by HLI assole signatory in his capacity as Chief Mutawalli.

c) An order directing the defendants no. 1 and 2 to handoverthe password of the domain name www.hamdard.com,www.hamdard.inand www.hamdardindia.comand its e-mailserver password to the plaintiff.

d) Direct defendants no. 1 and 2 to disclose and handover theERP (Enterprise Resource Planning) Admin Control Password.

e) Pass any other or further relief(s) which this Hon’ble Courtmay deem fit and proper in the facts and circumstances of thecase.”

6. On the other hand, Asad Mueed son of the previous ChiefMutawalli Abdul Mueed, sought removal of Appellant- Hammad Ahmedand his son Hamed Ahmed from the position of Mutawallis of Hamdardin the suit (Civil Suit No.162/2017) filed by him. The Defendant No. 4 in 3 Deed A

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Athe said suit is Abdul Majeed, respondent No.1 herein, the elder son ofthe last undisputed Chief Mutawalli Abdul Mueed who died on 19.03.2015.The removal of the Appellant and Respondent No. 3 was sought interalia on the ground of malfeasance and misfeasance of the affairs ofHamdard.

B7. The learned Single Judge decided the Interlocutory Applicationsfiled by the parties in their respective suits on 25.10.2017, whereby IANo. 4331 of 2017 filed by Respondent No. 2 in suit filed by him wasdismissed, whereas, IA No. 5860 of 2017 filed by the Appellant wasallowed inter-alia observing as under: - C“28. At the time of disposal of interim applications, only primafacie view of the matter is to be taken. On perusal of the variousclauses of the Trust Deed, it can be inferred, at this stage, that thesenior-most male descendant in the line of succession (of WakifMutawalli) is prima facie entitled to be appointed as ChiefMutawalli. It is not in dispute that presently the second defendantDis the senior most male descendant in the line of succession ofWakif Mutawalli. It is fairly admitted by the defendants that thesecond defendant would remain Chief Mutawalli during his lifetime and after that, it can devolve upon the plaintiff in terms of theclauses of the Trust Deed. Clause 3 is very specific and categoricalEin this regard. It cannot be interpreted that the male descendant inthe line of succession would be that of the Chief Mutawalli to beappointed as Chief Mutawalli. This interpretation will lead to theconclusion that the office of Chief Mutawalli would always remainin the family of the plaintiff to the exclusion of the second defendantand his family members for all the time to come.

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29. I find no substance in the arguments that the succession to theoffice of Chief Mutawalli must devolve by the rule of linealprimogeniture….”

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“47.In view of observations above, the defendants No. 1 &2 are directed to hand over the password of thedomain name www.hamdard.com,www.hamdard.inand www.hamdardindia.comand its e-mail server password to H

the plaintiff. They shall also disclose and handover the ERP(Enterprise Resource Planning) Admin Control Password.”

8. The learned Single Bench also did not find any merit in theargument that the Appellant has incurred disability on account of pendingcriminal cases against him in terms of Clause 6 of the 1973 Wakf Deed[4],as amended on 26.6.1973. The learned Single Bench held that merependency of criminal proceedings cannot debar the Appellant to beappointed as Chief Mutawalli as the disqualification as per Clause 6 (2)of the Deed is conviction of an offence involving moral turpitude alonefor disqualification. The relevant clause reads as under:- “In spite of the fact that a person has a right to be appointed as aMutawalli under Clause Four herein, the Majlis-e-Ayan shall havethe authority by a Special Resolution, to refuse to appoint suchperson as a Mutawalli or in the event of such a person havingalready been appointed as a Mutawalli, to remove or suspend himfrom office, if:

1. He is a minor or insane or by reason of lack of education,experience or old age and weak health is unable satisfactorily toperform his duties as a Mutawalli;

2. He is dishonest, addicted to alcohol, gambling or has beenconvicted of some crime involving moral turpitude;….”

9. Two First Appeals were preferred by the present RespondentNos. 1 and 2. The learned Division Bench set aside the order passed bythe learned Single Judge prima-facie finding that though the rule ofprimogeniture is not applicable as a rule of succession amongst Muslimsbut that is not a ground to overrule its application if provided in thetestamentary or other document. The Division Bench relied upon para 3of the 1973 Deed that after the death of First Chief Mutawalli, the seniormost male descendant in his line is to be appointed as Chief Mutawalli.The Bench recorded the following findings: - “28. This court is of opinion that Faqruddin (supra) is an authoritythat under Muslim personal law, lineal primogeniture does not apply.However, it nowhere states that lineal male primogeniture isprohibited-either in its application in a testamentary document, or A

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in a trust. In fact in Faqruddin (supra), the spiritual nature of theoffice and the acceptance of the holder, by the congregation wereproved; they were not in controversy. For these reasons, thatprimogeniture is not applicable as a rule of succession amongstMuslims, is not a ground to overrule its application if a given deed(testamentary or otherwise) so directs. Likewise, in Aruputham(supra), in fact the court upheld the applicability of the relativelysimpler rule of succession through lineal male primogeniture, ratherthan through a more complicated generation by generation processof discerning who amongst a collegial body, was entitled to“ambulatory” lineal primogeniture succession.

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30. A complete reading of the provision (relating to succession)therefore, leads one to conclude that after the death of the firstChief Mutawalli, the senior most male in his line- and one who isalso a Mutawalli, is entitled to succeed to the office. The lastcondition is important, because one might be the senior most malemember; yet existing membership as a Mutawalli ensures thatthe wakf is spared the risk of experimentation and vagaries ofadministration by one alien to its governance. The last internalclue, which has assumed some importance in this case, is thatduring the tenure of a Chief Mutawalli (or any Chief Mutawalli)he is the President of the Majlis-e-Ayan “the descendant second”in seniority to the Chief Mutawalli will be its Nazir/Secretary.This condition is to be read along with the other two preconditions,because it occurs as part of the principle governing succession.The designation of a Nazir or Secretary, has to be of the“descendant second in seniority to the Chief Mutawalli”. In otherwords, the successor to the office is also revealed during thelifetime of the holder, Chief Mutawalli, in the persona of the Nazir,who is second in seniority to the Chief Mutawalli.”

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10. Some facts leading to the present appeals are - Hakim HafizGAbdul Majid started the business of Hamdard as a sole proprietor in theyear 1906. He died on 22.06.1922 leaving behind his wife Mst. RabeaBegum and two sons, Haji Hakim Abdul Hamid and Hakim Mohd.Sayeed. These three executed a Deed on 28.08.1948 in order to managethe affairs of Hamdard. The Deed inter alia when translated in Englishrecites as under:H

“1. There shall be at least one or maximum two Trustees (Mutwalli)and if there is one Trustee then he will be given fees of Rs.1 annafrom special profit and if there are two Trustees then both will getfrom the income Rs. 1.5 anna as commission and this right will bebeside the share of the family income which according to theterms of the Trust Deed will be obtained by the Trustee or Trusteesfrom his forefather, but till the time owner no. 1 and 2 will remainas the Trustee of the Trust they will not be given any right underthis section.

2. Till the time we owners from this Trust, ownership No. 1 HajiAbdul Hameed and owner No. 2 Hakeem Hafiz Mohd. Sayeed isalive then we both will be Trustee of this Trust and all the rightsregarding the management of the Trust will remain jointly andseverally with both of us and this right will be received by both ofus managers jointly. That we can appoint someone else as Trusteeduring our life time or we can include any other person to sharethe benefit of the Trust with compensation or without compensationand for making arrangement after our death we can appoint anyperson as a Trustee against the terms of the Trust Deed and weboth the Trustees will have rights during our life time jointly and inthe case that only one Trustee is alive then he will have this rightalone to decide regarding that the above mentioned condition and the arrangement or way of distribution of the income and right ofinheritance in the above Trust Deed in proper manner or to increaseor decrees it. The Trustee or Trustees we will appoint under thissection for doing our work through written agreement, after usonly that persons can be appointed as Trustee. Right to removethe trustee which will be nominated and appointed by us will bethere to us jointly or separately.

3. In case of death of anyone of the Trustee then the deceasedTrustee will be replaced by his eldest son and in case of death ofthe other trustee he will be replaced by his eldest son and if out ofus the trustees anyone son is minor or he is not capable to fulfilthe duties of the trustees then till that son becomes major andcapable to fulfil the duties of trustees the sol trustee will manageall the works of the Trust alone. After we both trustees till thetime whenever there will be two trustees of the trust, their rightwill be distributed by resolution by Majlis-e-Ayan, but the Majlis- AB

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e-Ayan will not have right to decide the rights or increase ordecrease the right or to distribute rights of both the Trusteestogether or separately without any special reason or justificationbecause of which both the trustees or anyone of them cannotperform his duties with full independence or properly.

4. After us, and after the trustee or trustees who will be appointedas Trustees, the trustee of this Trust will be appointed from oursons who will be the eldest in the age and after that from son ofour sons the eldest son will be appointed as Trustee and in thismanner the appointment of the trustee of the trust will continuefrom our sons generation by generation and if no son is therefrom our children who is capable of managing and taking care ofthis Trust then out of the sons of our daughter, one will be appointedas the Trustee, and if the sons of our daughter are not capable tomanage Trust, then from our children any such lady will beappointed as Trustee who has capability of trustee. God forbidsout of our children any male or female who is capable to beappointed as trustee is not there then the Majlis-e-Ayan will havea right through the resolution they can appoint any non-familyperson as trustee who is capable to manage and increase thetrust.”

11. Mst. Rabea Begum died on 5.10.1948, whereas, the otherTrustee Hakim Mohd. Sayeed migrated to Pakistan in the year 1948.His interest was declared evacuee property on 06.08.1948. Subsequently,his share was purchased by Hamdard for the purpose of Wakf Quami,that is for charity on 22.06.1950. Thus, Haji Hakim Abdul Hamid becamethe sole surviving Wakif Mutawalli in terms of the 1948 Deed.

12. The above said Wakif Mutawalli in the year 1964 appointedhis two sons Abdul Mueed (born in the year 1935) and Hammad Ahmed(born in 1945) as Mutawallis. The Wakif Mutawalli has issued variousdeclarations from time to time in respect of working of Hamdard. Onthe basis of all such declarations, a comprehensive declaration was issuedon 02.07.1973 amending the 1948 Deed substantially. The amended Deedwas countersigned by the Wakif Mutawalli on 26.6.1973. It may bestated herein that though the declaration and the countersignatures areof different dates but both documents are contemporaneous and almostcontaining similar recitals.

13. The Appellant relies upon the declarations in the nature ofamendments in the 1948 Deed carried on 02.07.1973 as to who shouldmanage the affairs of the Wakf after the Wakif Mutawalli. The relevantextracts from the declaration issued by the Wakif Mutawalli read asunder:

“2. In exercise of the rights, powers and duties vested in me bythe Wakf-Deed I had made some declarations for efficient andbetter management of the Wakf and for clarifications andinterpretations and removal of doubts and difficulties and the saiddeclarations have been enumerated as various appendices to theWakf-Deed and now they stand merged and incorporated in thetext of the relevant provisions and appropriate contexts for thesake of convenience. These declarations were made to meet theexigencies of time and situation and within the framework of theWakf for the benefit of charity and advancement of charitableobjects and compliance of the basic provisions of the Wakf.

3. In view of the vast expansion in the activities of thecharity for which the Wakifs dedicated, complex problems ofmodern management and for more efficient administration, controland fulfilment of the object of charity and to meet the requirementsof the changing tax and other laws it has become necessary tomake a further declaration for clarification, explanation, elucidation,alteration, removal of doubts and difficulties, if any, and for furtherexposition of the provisions and meeting the requirements ofchanging laws and safeguarding the objects of charity and thebusiness of the Wakf which is for charity and for advancement ofthe charitable objects. Accordingly, I, in my capacity as sole Wakif-Mutawalli, do hereby declare on solemn affirmation regardingmatters referred to above, effective from 01.01.1973:”

“Clause No. 1:This clause is substituted by the following text; “For the management of the Wakf there shall be at least one andat the most five Mutawallis including the Wakif-Mutawalli andthe Chief Mutawalli.”

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Chief Mutawalli. After the Wakif-Mutawalli ceases to beMutawalli, every Chief Mutawalli shall have the same rights andduties of administration of the Wakf and power of makingregulations therefore as are provided in this Deed for the Wakif-Mutawalli and allocate rights and duties among other Mutawallis.With the exception of Wakif-Mutawalli, the remuneration of theChief Mutawalli and Mutawallis for services rendered to the Wakfshall be such as may be decided upon by the Wakif-Mutawalliand after he ceases to be Mutawalli, by the Chief Mutawalli incase of Mutawallis, and the Majlis-e-Ayan in case of ChiefMutawallis. These remunerations will be decided upon after takinginto account the nature of service rendered by each one of themand the extent of the activities of the Wakf.”

“The above remuneration of a Mutawalli will be in addition to theshare of Khandani Income which may be due to him under thisWakf-Deed, except in the case of Wakif-Mutawalli Hakim AbdulHameed. During the life time of Wakif-Mutawalli Hakim AbdulHameed there will be no Khandani Income. He will be paid forservices rendered Rs. 72,000/- a year or 7/64 whichever is less.”

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Clause 3: This clause is substituted by the following text:

“The First Chief Mutawalli will be appointed by Wakif-Mutawalli.And thereafter the senior most male descendant in line ofsuccession (of Wakif-Mutawalli) and then holding an office ofMutawalli will be the Chief Mutawalli. After the Wakif-Mutawalli,the division of rights and duties among the Mutawallis shall bemade by the Chief Mutawalli for efficient working of the Wakfand the Majlis-e-Ayan shall have no right to disturb this division orrender it difficult for the Chief Mutawalli or any of the Mutawallisto perform his or their duties to manage the Wakf satisfactorilyand with proper freedom of action.”

“This Chief Mutawalli will be the Sadar (President) of theMajlis-e-Ayan and the descendant second in seniority to the ChiefMutwalli will be its Nazir (Secretary).”

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Clause 42 :

This Clause is substituted by the following text:

“42.:During the life time of Wakif Mutawallis there will be noKhandani Income. He will be paid for the services renderedRs. 72,000/- a year or 7/64 of the net divisible profit whichever isless. The Khandani Income will arise and become payable onlyafter the death of Wakif-Mutawalli as per Shariat law.”

“42-A.: Mr. Abdul Mueed and Mr. Hammad Ahmad, sons ofWakif-Mutawalli Hakim Abdul Hameed, are nominated as hissuccessors under the terms of this Deed. They are the two otherMutawallis of this Wakf appointed by the Wakif-Mutawalli. Theywill act as Chief Mutawallis and Mutawallis respectively. Theywill be paid salaries for services rendered to the Wakf as fixed bythe Wakif-Mutawalli. This shall be charged to the profit and lossaccount of the Wakf. The salaries of other Mutawallis will befixed by Wakif-Mutawalli/Chief Mutawalli. The salary ofsubsequent Chief Mutawalli will be fixed by Majlish-e-Ayan.””

14. The 1948 Deed as countersigned on 26.06.1973 afterincorporation of the amendments by Wakif Mutawalli has been appendedas Annexure P.1. The relevant extracts from such amended documentare as under:

“1. For the management of the Wakf there shall be at least oneand at the most five Mutawallis including the Wakif Mutawalliand the Chief Mutawallis.

The senior most among the male descendants of the WakifMutawalli who shall be holding an office of the Mutawalli will bethe Chief Mutawalli. After the Wakif Mutawalli ceases to beMutawalli, every Chief Mutawalli shall have the same rights andduties of administration of the Wakf and power of makingregulations therefor as are provided in this Deed for the WakifMutawalli and allocate rights and duties among other Mutawallis.With the exception of Wakif Mutawalli, the remuneration of theChief Mutawalli and Mutawallis for services rendered to the Wakfshall be such as may be decided upon by the Wakif Mutawalli andafter he ceases to be Mutawalli, by the Chief Mutawalli in caseof Mutawallis, and by Majlis-e-Ayan in case of Chief Mutawalli.

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These remunerations will be decided upon after taking into accountthe nature of service rendered by each one of them and the extentof the activities of the Wakf.

The above remuneration of a Mutawalli will be in addition to theshare of Khandani Income which may be due to him under thisWakf-Deed except in the case of Wakif Mutwalli Hakim AbdulHameed. During the life time of Wakif Mutawalli Hakim AbdulHameed there will be no Khandani Income. He will be paid forservices rendered Rs. 72,000/- a year or 7/64 whichever is less.

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3. The First Chief Mutawalli will be appointed by Wakif Mutwallithereafter the senior most male descendant in line of succession(of Wakif Mutawalli) and then holding an office of Mutawalli willbe the Chief Mutawalli. After the Wakif-Mutawalli, the divisionof rights and duties among with Mutwallis shall be made by theChief Mutawalli for efficient working of the Wakf and the Majlis-e-Ayan shall have no right to disturb this division or render itdifficult for the Chief Mutawalli or any of the Mutawallis to performhis or their duties to manage the Wakf satisfactorily and withproper freedom of action.

The Chief Mutwalli will be the Sadar (President) of the Majlis-e-Ayan and the descendant second in seniority to the ChiefMutawalli will be its Nazir (Secretary).

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6. In spite of the fact that a person has a right to be appointed asa Mutwalli under Clause Four herein, the Majlis-e-Ayan shall havethe authority by a Special Resolution, to refuse to appoint suchperson as a Mutawalli or in the event of such a person havingalready been appointed as a Mutawalli, to remove or suspend himfrom office, if:

(1) He is a minor or insane or by reason of lack of education,experience or old age and weak health is unable satisfactorily toperform his duties as a Mutawalli;

(2) He is dishonest, addicted to alcohol, gambling or has beenconvicted of some crime involving moral turpitude;….

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8. In the event of Wakif Mutawalli ceasing to be the Mutawalli ofthis Wakf, the general superintendence of the Wakf shall vest,subject to the terms of this Deed, in a Majlis called Majlis-e-Ayan.However, the Majlis-e-Ayan shall not interfere in the day to dayadministration of the Wakf. The rights and powers that havebeen reserved for exercise by the Majlis-e-Ayan shall be exercisedby the said Majlis-e-Ayan only after the death of Wakif Mutawallior when he ceases to be Mutawalli. This Majlis shall have amaximum of nine members nominated by Wakif Mutawalliincluding all the Mutawallis in office. The future vacancies willalso be filled in by nomination by Wakif-Mutawalli in his life timeand after his death by the members of the Majlis-e-Ayan fromout of his heirs, legal representatives and all persons male or femalewho are entitled to a share in Khandani Income either in theirown right or as rightful guardian of the minor beneficiaries. TheWakif Mutawalli after his ceasing to be Mutawalli and all theMutwallis in office shall be ex-officio members of the Majlis-e-Ayan. They shall have all the rights and duties of the members ofMajlis-e-Ayan including the right to vote.

9. An ordinary meeting of the Majlis-e-Ayan shall, subject to therules and bye-laws framed by it, be held at least twice a year.(Whenever) Whatever resolutions are passed by a majority ofvotes of members present at such meetings, the same shall becalled ‘ORDINARY RESOLUTIONS’. The Chairman of theMeeting shall have the casting vote.

42-A. Mr. Abdul Mueed and Mr. Hammad Ahmed, sons of WakifMutawalli Hakim Abdul Hameed, are nominated as his successorsunder the terms of this Deed. They are the two other Mutawallisof this Wakf appointed by the Wakif Mutawalli. They will act asChief Mutawalli and Mutawalli respectively. They will be paidsalaries for services rendered to the Wakf as fixed by the WakifMutawalli. This shall be charged to the profit and loss account ofthe Wakf. The salaries of other Mutawallis will be fixed by WakifMutawalli/Chief Mutawalli. The salary of subsequent ChiefMutawalli will be fixed by Majlis-e-Ayan.”

15. The Wakif Mutawalli appointed his grandsons Abdul Majeed(eldest son of Abdul Mueed born on 23.12.1969) and Hamed Ahmed AB

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A(eldest son of Hammad Ahmed born on 25.3.1977) as Mutawallis on30.05.1995 as fourth and fifth Mutawalli. Haji Hakim Abdul Hamid, theWakif Mutawalli died on 22.07.1999 that is after the amendments in thedeed of Wakf.

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16. On 04.07.1995 the Wakif Mutawalli constituted Board ofMutawallis. Abdul Mueed was declared to be the Vice Chairman andhis son Abdul Majeed as Secretary of the Board of Mutawallis. Suchdeclaration reads as under:

“HAMDARD

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Dated 04/07/1995

CONSTITUTION OF THE BOARD OF MUTAWALLIS

Presently, Wakif Mutawali, Chief Mutawali and Mutawali areconsulting and discussing the affairs of the Hamdard DawakhanaD(Wakf) both formerly and informally. Now two more Mutawallis,viz. Mr. Abdul Majeed & Mr. Hamid Ahmed eldest sons of Mr.Abdul Mueed and Mr. Hammad Ahmed respectively, are appointedas Mutawallis of the Wakf. They will be working from the daythey assume their offices.

It is felt that the Board of Mutawallis should be constituted in thelife of Wakif Mutawalli, which can be converted later into “Majlis-e-Ayan” after Wakif Mutawali ceases of hold his office.

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As per clause 8 of the Wakf Deed of Hamdard Dawakhana,“Majlis-e-Ayan” will be constituted in the event of Wakif MutawalliFceasing to be Mutawalli of Wakf for the general superintendenceof the Wakf.

With this order, I hereby constitute the board of Mutawallis forthe Hamdard Dawakhana (Wakf) as under:-

1. Hakeem Abdul Hameed

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(Wakif Mutawalli): Chairman

2. Mr. Abdul Mueed

: Vice Chairman

3. Mr. Hammad Ahmed

: Senior Mutawalli

4. Mr. Abdul Majeed

: Mutawalli

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5. Mr. Hamid Ahmed- can attend the meetings as an observer tillhe assumes office of Mutawalli.

Mr. Abdul Majeed will be the Secretary of the Board of Mutawallisand he will issue the agenda and will record the minutes.

In the absence of Wakif Mutawalli, Vice Chairman will presideover the meetings.

The meeting will be held initially fortnightly i.e. for about a yearand subsequently the frequency will be reviewed.

The Board of Mutawallis will supervise, monitor and review thefunctions of Hamdard Dawakhana (Wakf). The Board ofMutawallis will finalise and approve the budgets, working plans,projects and major policies which are not of routine in nature.

The Board of Mutawallis will also review the reports, budgetsand plans of the Aid Receiving Institutions from HamdardDawakhana(Wakf).

This Board will start functioning from today.

Sd/-

Wakif Mutawalli”

17. After the death of Wakif Mutawalli, Abdul Mueed as the ChiefMutawalli appointed Asad Mueed, his younger son born on 1.9.1973, asthe fifth Mutawalli on 17.04.2000. It is said Asad Mueed, who is Plaintiffin Civil Suit No. 162 of 2017. Abdul Mueed died on 19.3.2015, leading todisputes between the parties.

18. Sajid Ahmed son of Hammad Ahmed (born on 5.6.1978) wasappointed as fifth Mutawalli on 14.4.2015 by Hammad Ahmed claiminghimself to be Chief Mutawalli after the death of Abdul Mueed, the firstand last undisputed Chief Mutawalli.

19. In this background, the learned Senior Counsel for the Appellantargued that the rule of primogeniture is not contemplated by the Deed asamended in the year 1973 by the Wakif Mutawalli. Learned SeniorCounsel for the Appellant refers to the various clauses of the 1948 Deed,which contemplate that the Wakif, his sons and grand-children wouldnot get anything as income but could receive remuneration only for A

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Aconsideration of services rendered to the Wakf. The Wakif Mutawallisand their successors would have no right of ownership or power ofdisposition in the capital, the assets, the corpus and the properties of theWakf or any appreciation in value thereof.

20. Earlier four suits including one by Hamdard bearing Suit No.B117 of 1972 were decided by the learned Single Bench of High Court ofDelhi on 23.12.2011. The challenge in the suit was to a notificationdated 12.12.1970 declaring Hamdard as Wakf under the Wakf Act, 1995.The said notification was alleged to be illegal and void. It was heldtherein that the Hamdard is not a Wakf within the meaning of the WakfAct. The relevant extracts from the judgment of the learned Single JudgeCread as under:

“74. In view of the above discussion, it is held that the DawakhanaWakf is not a Wakf within the meaning of the term, under theWakf Act, despite the use of the term “wakf” (which appears tobe misleading). It is settled law that nomenclature of a documentDor deed is not conclusive of what it seeks to achieve; the courthas to consider all parts of it, and arrive at a finding in regard to itstrue effect….

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E77. In this case, as held earlier, the Dawakhana Wakf is not awakf, on an application of all the relevant tests. Therefore, thequestion of the Nursing Home, the Institute of History of Medicinesand Medical Research, Hamdard National Foundation, IndianInstitute of Islamic Studies being wakfs just because their propertieswere purchased out of the income of the Dawakhan Wakf, wouldFnot arise. Some of them, are in fact independent juristic entities,being societies, capable of, and in fact holding properties. In thecase of registered societies, by virtue of Section 5 of the SocietiesRegistration Act, 1860 the property, movable and immovable,belonging to it, if not vested in trustees, would be deemed to beGvested in its governing body. This is completely contrary to awakf, where the mutawalli is a mere manager; the property isperpetually and irrevocably dedicated to God Almighty.Furthermore, each of the said bodies and entities is autonomous,and the Dawakhana Wakf is not the exclusive donor; it is one of G

the sources of grant. They can itself seek donations and grantsfrom other institutions in furtherance of its objectives. Lastly, thereis nothing in the deeds or instruments creating them, either in theMemorandum or Articles of Association, indicative of perpetualdedication, or its being in favour of the Lord Almighty, to obtaindivine pleasure. In other words, the controlling instruments, ordocuments which have created these institutions, are singularlysilent about the essential elements which signify a wakf. Thecourt therefore, holds that the said institutions are not wakf, eventhough some of them are beneficiaries of the Dawakhana Wakf.The issues are answered against the Defendants, and in favourof the plaintiff.”

Such judgment and decree was affirmed in the appeal.

21. The argument is that the entire reading of the Deed particularlyClauses 1, 3 and 42-A would show that the senior most surviving malesuccessor is contemplated to be the Chief Mutawalli, whereas, the fourother male successors/descendants are contemplated to be theMutawallis. The Deed also contemplates that in the event, if there is nomale descendant in the direct line of succession who is fit person toassume charge as a Mutawalli of the Wakf, then anyone from the maledescendant of the female issue being rightful claimant to successionshall be appointed as Mutawalli. If there is no male descendant of thefemale issue, who is fit enough to become a Mutawalli then any femaleissue of descendants who shall be fit to become Mutawalli shall be soappointed. It is only in the event, when there is no male or female leftfrom the male and female descendants, Majlis-e-Ayan shall have theright to appoint by an extra-ordinary resolution, someone from outsidethe family who has the ability to act as a Mutawalli and to administer theWakf property.

22. In terms of Clause 1 of the 1973 Deed, there shall be minimumof one and maximum of five Mutawallis including the Wakif Mutawalliand the Chief Mutawalli. The senior most amongst the male descendantsof the Wakif Mutawalli who shall hold the office of the Mutawalli, willbe Chief Mutawalli. On the basis of such clause, it is argued that for aChief Mutawalli, the condition is that the person should be Mutawalliand the senior most amongst the male descendants of the Wakif Mutawalli AB

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Ashall be the Chief Mutawalli. After the death of Wakif Mutawalli, thesenior most male descendant, Abdul Mueed came to discharge the dutiesof Chief Mutawalli. Therefore, after his death, the Appellant being seniormost male descendant of the Wakif Mutawalli, is to act as ChiefMutawalli. Abdul Majeed, the elder son of First Chief Mutawalli cannotbe the Chief Mutawalli as is made out from the nature of the bequestBand the cumulative reading of the Wakf documents.

23. Learned Senior Counsel for the Appellant refers to Clause 3of the Deed amended in the year 1973 to argue that the First ChiefMutawalli is to be appointed by Wakif Mutawalli. Thereafter, the seniormost male descendant in line of succession and then holding an office ofCMutawalli will be the Chief Mutawalli. It is further stated that the ChiefMutawalli would be called President of the Majlis-e-Ayan and thedescendant, who is second in seniority to the Chief Mutawalli will be itsNazir (Secretary).

24. Referring to Clause 42-A of the 1973 Deed, it was pointed outDthat Abdul Mueed was appointed as Chief Mutawalli and the Appellantas Mutawalli by the Wakif Mutawalli. Therefore, a reading of the entiredocument would show that the object of the Deed is to appoint the seniormost male descendant as the Chief Mutawalli. Since the Appellant is thesenior most male descendant, he has rightly issued an order on 20.03.2015Eto take over the responsibilities as a Chief Mutawalli.

25. Mr. Vasdev, learned Senior Counsel for the Appellant arguedthat Asad Mueed has not pleaded in the suit that Abdul Majeed is entitledto be Chief Mutawalli in view of rule of primogeniture or that AbdulMajeed is Chief Mutawalli, but it was only in replication the plea ofFapplicability of rule of primogeniture was raised. It was submitted relyingupon the judgment in Faqruddin v. Tajuddin[5] that rule of primogeniturehas no application amongst Muslims.

26. The reliance is placed upon an earlier order passed by theDivision Bench of the High Court of Delhi, in FAO(OS) 208/2017, directedGagainst an order of the learned Single Bench of 26.5.2017, wherein learnedcounsel for the parties stated that issue relating to Chief Mutawalli is ofconsiderable importance as it affects the functioning of the aforesaidinstitutions/ organisations. The appeals were decided in view of the factthat the matter was listed before the learned Single Judge on 30.8.2017.The relevant extract from the said order reads as under:H5 (2008) 8 SCC 12

“3. Learned counsel for the parties state that the issue relating toChief Mutawalli is of considerable importance as it affects thefunctioning of the aforesaid institutions/organisations. Counselfor the parties state that they will make a request for earlyadjudication of the said issue. We hope and trust the matter wouldbe decided expeditiously. We also record that the matter is alreadylisted before the single Judge on 30[th] August, 2017.”

27. It was argued that there is no impediment or bar on the judgmentof a Court to grant an injunction, even at the interim stage if there isillegality for the reason that the Appellant is the senior most maledescendant in the line of Wakif Mutawalli, therefore, the Appellant isentitled to control of domain names as Chief Mutawalli. Reliance hasbeen placed upon the judgment reported as Dorab Cawasji Warden v.Coomi Sorab Warden and Others[6]. It was also argued that in anAppeal against an order of injunction, a Court of Appeal interferes notwhen the judgment under attack is not right, but only when it is shown tobe wrong, placing reliance upon Dollar Company, Madras v. Collectorof Madras[7]. The reliance is also placed upon a judgment reported asWander Ltd and Another v. Antox India P. Ltd.[8]that the AppellateCourt will not reassess the material and seek to reach a conclusiondifferent from the one reached by the court below, if the one reached bythe court below was reasonably possible on the material. The reliancewas also placed upon the judgment reported in Mohd. Mehtab Khanand Others v. Khushnuma Ibrahim Khan and Others[9]that theAppellate Court should not have substituted its view on the matter merelyon the ground that in its opinion the facts of the case call for a differentconclusion.

28. Learned Senior Counsel for the Appellant argued that thejudgment reported as A. Aruputham v. A.V. Yagappa[10] has beenwrongly applied to hold that the principle of lineal primogeniture appliesin the present case. The said judgment arises out of a case where theparties are governed by the Hindu Law of Succession wherein testatorhas specified that his estate to come to his son and sons by the rule of 6 (1990) 2 SCC 117

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9 (2013) 9 SCC 221

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Aprimogeniture. In the present case, in the case of Hanafi Muslims, theDeed governing the succession to manage the affairs of a Wakf specifiesa line of succession as different and distinct from the said judgment. Thesuccession to the office of Mutawalli is governed by the terms of Deed.Therefore, the question that who will succeed as a Chief Mutawalli is tobe arrived at only from the entire reading of the Deed.B

29. It is also argued that on 28.04.2015, a resolution was passedby all the Mutawallis that the banking operations shall be carried out byAbdul Majeed and Hammad Ahmed. In pursuance of such resolution,more than Rs. 900 crores have been disbursed to various parties in thelast 2 years. Since there is no rule of primogeniture and the Deed asCamended in the year 1973 has not changed the basic concept of WakfManagement in the hands of two sons of Wakif Mutawalli and theirsuccessors with the condition that the senior most male descendant willbe the Chief Mutawalli, therefore, Abdul Mueed, the senior most maledescendant, after the death of Wakif Mutawalli was rightly designatedDas Chief Mutawalli and after his death, by virtue of the Deed, theAppellant has rightly declared himself to be the Chief Mutawalli.

30. Mr. Rohatgi, learned Senior Counsel for the Respondentsargued that order of the Division Bench passed on 04.08.2007 relates toissues pertaining to Chief Mutawalli, the issue that is to be framed in aEsuit and not for the purpose of deciding an interim injunction application.Since the issues in the suit have not been framed, therefore, the questionthat who will be the Chief Mutawalli is not an issue to be decided at thetime of consideration of application under Order XXXIX Rules 1 and 2of the Code.

F31. It is also argued that in an application under Order XXXIXRules 1 and 2 of the Code, the Court will not grant interim mandatoryrelief resulting in creation of entirely new state of affairs which hithertonever existed. The reliance is placed upon Samir Narain Bhojwani v.Arora Properties and Investments and Another[11]. It is contendedthat the declaration of the Appellant to be Chief Mutawalli, disputedGimmediately by Respondent No. 1, does not mean the existence of statusat the time of filing of the suit which can be protected in an applicationunder Order XXXIX Rules 1 and 2 of the Code. Since the Appellanthas sought passwords of domain names, server and Enterprise Resources Planning System, it shows that the Appellant was not in control of themanagement of Hamdard, therefore, injunction to hand over of thepasswords and thus management of Hamdard cannot be granted beingan injunction in the mandatory form.

32. It is also argued that Respondent No. 1 being in actual controlof Hamdard was not required to file a substantive suit for control of theOrganisation as he was already in control of the Organisation and allHeads of the Departments of Hamdard report to him. He is the occupierof all factories and the holder of all licences allotted to Hamdard.

33. It is submitted that the language of the Deed as amended hadto be different if the contention of the Appellant is to be accepted. Though1948 Deed sets out the “line of succession” of the said Wakif Mutawallibut the amended deed does not contain any such or similar clause.

34. In pursuance of such Deed, Abdul Majeed was declared to beNazir by the Wakif Mutawalli on 04.07.1995 during his life time. Suchdeclaration will negate the argument that the Appellant was not the secondin the line of succession competent to be appointed as Nazir in terms ofClause 3 of 1973 Deed. The parties have understood that position since1995 when Abdul Majeed was declared as Nazir. The Appellant has notdisputed such arrangement for more than 20 years; therefore, theAppellant cannot assert himself to be the Chief Mutawalli. It is alsoargued that Abdul Mueed died on 19.03.2015 but the suit has been filedonly on 16.05.2017, asserting himself to be Chief Mutawalli. Suchassertion also suffers from delay and laches. It is argued that the words“in line of succession” would be rendered otiose and meaningless if thecontentions raised by the Appellant is to be accepted.

35. Relying upon the judgment reported as The Secretary ofState for India in Council v. Syed Ahmad Badsha Sahib Bahadur[12],it is argued that in the case of single indivisible hereditary office, thesuccession should be governed by the principle of lineal primogeniture inthe absence of clear evidence to the contrary.

36. Further, the Division Bench has remitted the matter back tothe learned Single Bench to frame a neutral administrative overseemechanism for the management of Hamdard to balance the interests ofthe parties. Therefore, the order passed by the Division Bench does notrequire any interference.

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A37. We find that the order of Division Bench cannot be sustained.In an earlier suit, the challenge was to notification dated 12.12.1970declaring Hamdard as Wakf under the Wakf Act, 1995. The Delhi HighCourt examined 1948 Deed and also the amendments made in the year1973, to arrive at a finding in regard to true nature of Wakf. It was heldas under:-B

“74. In view of the above discussion, it is held that the DawakhanaWakf is not a wakf within the meaning of the term, under theWakf Act, despite the use of the term “wakf” (which appears tobe misleading). It is settled law that nomenclature of a documentor deed is not conclusive of what it seeks to achieve; the courthas to consider all parts of it, and arrive at a finding in regard to itstrue effect…..

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77. In this case, as held earlier, the Dawakhana Wakf is not awakf, on an application of all the relevant tests. Therefore, thequestion of the Nursing Home, the Institute of History of Medicinesand Medical Research, Hamdard National Foundation, IndianInstitute of Islamic Studies being wakfs just because their propertieswere purchased out of the income of the Dawakhana Wakf, wouldnot arise. Some of them, are in fact independent juristic entities,being societies, capable of, and in fact holding properties. In thecase of registered societies, by virtue of Section 5of the SocietiesRegistration Act, 1860 the property, movable and immovable,belonging to it, if not vested in trustees, would be deemed to bevested in its governing body. This is completely contrary to a wakf,where the mutuwalli is a mere manager; the property is perpetuallyand irrevocably dedicated to God Almighty. Furthermore, each ofthe said bodies and entities is autonomous, and the DawakhanaWakf is not the exclusive donor; it is one of the sources of grant.They can itself seek donations and grants from other institutionsin furtherance of its objectives. Lastly, there is nothing in the deedsor instruments creating them, either in the Memorandum or Articlesof Association, indicative of perpetual dedication, or its being infavour of the Lord Almighty, to obtain divine pleasure. In otherwords, the controlling instruments, or documents which havecreated these institutions, are singularly silent about the essentials D

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elements which signify a wakf. The court therefore, holds thatthe said institutions are not wakfs, even though some of them arebeneficiaries of the Dawakhana Wakf. The issues are answeredagainst the Defendants, and in favour of the plaintiff.”

38. Thus, the nature of Hamdard was settled that it is not Wakf asis defined in the Wakf Act,1995 and that the property, movable andimmovable, belonging to it would be deemed to be vested in its governingbody.

39. We do not find any merit in the argument that the consent ofthe parties in an appeal against an interim order passed on an applicationunder Order XXXIX Rules 1 and 2 of the Code related to issues whichare required to be framed after completion of the pleadings in a suit. Theappeal 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 have agreed that the question of considerable importancerelates to the appointment of Chief Mutawalli at the time of considerationof an interim application. Both the courts have examined the Deeds toconsider as to whether the Appellant can be said to be Chief Mutawalli.

40. The learned Single Judge held that the Appellant is a ChiefMutawalli by interpreting the Wakf Deed, whereas, the Division Benchhas taken a different view. In fact, the Division Bench relied upon A.Aruputham case (supra) which was in respect of a construction of aWill relating to vesting of the estate of the testator-a Hindu Male. Thesaid judgment is not applicable in respect of appointment of a ChiefMutawalli which is not a case of succession of the property of thedeceased governed by Muslim personal law but appointment of successorunder a deed executed by Wakif Mutawalli for the management ofHamdard. The question relates to construction of the Wakf Deed asamended in the year 1973 for the management of Wakf as to who shallhave the right to manage the affairs of Hamdard and not the successionof an estate of the deceased. Therefore, we find that the Division Benchhas wrongly relied upon A. Aruputham case (supra).

41. The learned Division Bench referred to Faqruddin’s case(supra) that under Personal Law the rule of lineal primogeniture is notapplicable as a rule of succession amongst Muslims, is not a ground to A

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Aoverrule its application if a deed (testamentary or otherwise) so directs.It is thereafter, the Division Bench has interpreted the amended deed ofwakf and also the resolution of 04.07.1995 to hold that lineal maleprimogeniture is the rule of succession applied to the office of ChiefMutawalli rather than an uncertain collegial ambulatory lineal succession.

B42. The rule of primogeniture is not a rule applicable to the Muslimsas per the Personal Law as held in Faqruddin’s case (supra). Therefore,the primary question between the parties relating to appointment of ChiefMutawalli has to be decided on the basis of construction of 1948 Deedand the amendments made in the year 1973 by the Wakif Mutawalli.The 1948 Deed is unambiguous that two brothers Haji Hakim AbdulCHamid and Hakim Mohd. Sayeed shall be Trustees and that in case ofdeath of any one of the Trustee then the deceased Trustee will be replacedby his elder son and in case of death of other Trustee he will be replacedby his elder son (Clause 3 as reproduced above). Similarly, Clause 4 ofthe Deed is that the Trustees of the Trust will be appointed from theirDsons who will be eldest in age and after that from the sons of their sons,the elder son will be appointed as Trustee.

43. The 1973 Deed is not a new document but includesamendments in the 1948 Deed based upon the declarations made by theWakif Mutawalli from time to time compiled on 02.07.1973. Last pageEof document Annexure “P-1” would show that it is not a new documentbut the document incorporating amendments which were counter signedby Wakif Mutawalli on 26.06.1973. Clause 3 of the declaration as alsothe amended Deed of Wakf and Deed in the year 1973, referred to bythe parties, read as under:

FDeed as amended in the year 19733. The First Chief Mutawalli will be appointed by Wakif Mutwalli thereafter the senior most male descendant in line of succession (of Wakif Mutawalli) and then holding an office of Mutawalli will be the Chief GMutawalli.

DeclarationClause 3: This clause is substituted by the following text: “The First Chief Mutawalli will be appointed by Wakif-Mutawalli. And 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.”

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44. We find that in the declaration dated 02.07.1973, in the firstline there is a full stop after the word “mutawalli” and thereafter, newline 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 theyear 1973 in the absence of full stop is not coherent and appears to beincomplete.

45. The well-known principle of interpretation of document is thatone line cannot be taken out of context. It is a cumulative reading ofentire document which would lead to one conclusion or the other. Someof the judgments relevant for determining as to the principle ofinterpretation of documents are delineated hereinafter. One of thejudgments relating to the interpretation of documents is DelhiDevelopment Authority v. Durga Chand Kaushish[13]. It was held thatthe meaning of the document or of a particular part of it is to be soughtfor in the document itself. The Court held as under:- “19. Both sides have relied upon certain passages in Odgers’“Construction of Deeds and Statutes” (5th ed. 1967). There (at pages28-29), the First General Rule of Interpretation formulated is: “Themeaning of the document or of a particular part of it is therefore to besought for in the document itself”. That is, undoubtedly, the primary ruleof construction to which Sections 90 to 94 of the Indian Evidence Actgive statutory recognition and effect, with certain exceptions containedin Sections 95 to 98 of the Act. Of course, “the document” means “thedocument” read as a whole and not piecemeal.

20. The rule stated above follows logically from the Literal Ruleof Construction which, unless its application produces absurd results,must be resorted to first. This is clear from the following passages citedin Odgers’ short book under the First Rule of Interpretation set out above:

Lord Wensleydale, in Monypenny v. Monypenny[14] said:

“the question is not what the parties to a deed may have intended to do by

entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions.”

13 (1973) 2 SCC 82514 (1861) 9 HLC 114, 146

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ABrett, L.J., in Re Meredith, ex. p. Chick[15] observed:

“I am disposed to follow the rule of construction which waslaid down by Lord Denman and Baron Parke…………….Theysaid that in construing instruments you must have regard, notto the presumed intention of the parties, but to the meaning ofBthe words which they have used.”

21. Another rule which seems to us to be applicable here wasthus stated by this Court in Radha Sunder Dutta v. Mohd.Jahadur Rahim and Others[16] :

“Now, it is a settled rule of interpretation that if there beCadmissible two constructions of a document, one of which willgive effect to all the clauses therein while the other will renderone or more of them nugatory, it is the former that should beadopted on the principle expressed in the maxim ‘ut res magisvaleat quam pereat’.”

46. Therefore, the entire 1948 Deed as amended in the year 1973Dhas to be read together to find out the process of appointment of ChiefMutawalli.

47. The argument that the rule of primogeniture is explicit in theamended clauses of the 1948 Wakf Deed, as the eldest son and after hisdeath his son has been given the preferential treatment than the otherEmale descendants, is not tenable. The question is not succession in thematter of immovable property but line of succession for the managementof Wakf.

48. The Clause 1 of 1973 Deed is that the senior most among themale descendants of the Wakif-Mutawalli holding an office of MutawalliFwill be the Chief Mutawalli. The Clause 3 of the same deed is that theFirst Chief Mutawalli will be appointed by Wakif Mutawalli thereafterthe 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 mostmale descendant in the line of succession of Wakif Mutawalli shall beGChief Mutawalli.

49. The argument that the constitution of the Board of Mutawallison 04.07.1995 negates the argument raised by the Appellant that thesenior most male descendant has to be the Chief Mutawalli and second 15 (1973) 2 SCC 825H16 (1861) 9 HLC 114, 146

in line as Nazir (Secretary). No doubt in the constitution of the Board on04.07.1995, the second senior most male descendant was not nominatedas Nazir (Secretary) but such fact alone will not negate the variousprovisions of the document which support the contention raised by theAppellant that it is the senior most male descendant who shall be theChief Mutawalli. May be, Abdul Majeed was nominated as Secretaryof the Board keeping in view his age and educational qualifications butsuch action will not negate cumulative reading of the 1973 Deed.

50. The action of the Wakif Mutawalli in nominating the seniormost male descendant Abdul Mueed and his younger son-the Appellantas Mutawallis in terms of 1948 Deed shows that his both lines ofsuccessors were treated equally. After the composition of the Board ofManagement was increased to five after amendment in the year 1973,the Wakif Mutawalli appointed Abdul Majeed eldest son of the AbdulMueed (born on 23.12.1969) and Hamed Ahmed eldest son of theAppellant (born on 25.03.1977) on 30.05.1995 as Mutawallis. On thatday, Asad Mueed (born on 1.09.1973) younger son of Abdul Mueed butolder in age than the Hamed Ahmed was not made Mutawalli. It wasonly on 17.04.2000 i.e. after the death of Wakif Mutawalli, he was madethe fifth Mutawalli. If the line of management has to be in the hands ofsenior most male descendant of Abdul Hamid, the Wakif Mutawalli shouldhave appointed Asad Mueed instead of Hamed Ahmed in the year 1995.

51. 1973 Deed is not a new document but the amended 1948Deed by Wakif Mutawalli from time to time. Since, the Board of Trusteeswas contemplated to be five Mutawallis including Wakif Mutawalli orChief Mutawalli, therefore, the induction of grandsons was not in orderof date of birth but keeping in view the representations to both sons ofthe Wakif Mutawalli. Therefore, the 1948 Deed as amended does notshow the applicability of principal of rule of primogeniture but equalrepresentation to the heirs of both sons of Wakif Mutawalli.

52. The judgment of Division Bench of Madras High Court inSecretary of State for India (supra) is consequent to the judgment ofFull Bench reported as The Secretary of State for India in Councilvs. Syed Ahmad Badsha Sahib Bahadur[17]. The Full Bench wasexamining the applicability of principle of res judicata in view of findingsrecorded in an earlier suit. It was held by the Full Bench that decision in A

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Athe previous suit is not conclusive but is only evidence and it is open tothe plaintiff to establish his title as against the Government. Consequentto the opinion of the Full Bench, the appeal was taken up for hearing on09.05.1921. It was consequent to the opinion of the Full Bench; theappeal was taken up for hearing on 09.05.1921.

B53. The Division Bench held that plaintiff has proved that he islawful successor by heredity right as the office cannot be enjoyed byseveral heirs in common, therefore, succession must be by linealprimogeniture. The said order does not support the argument raised bythe respondent as it is not a single heir who is holder of the office. Infact, the Wakif Mutawalli has constituted a Board of five Mutawallis.CTherefore, it is a body of Mutawallis which has been vested with theright of management of Hamdard and senior most male descendantamongst them contemplated to be Chief Mutawalli.

54. The argument that there is delay and laches on the part of theAppellant to dispute the existing mechanism of the management is againDnot tenable. The entire argument is based upon the constitution of theBoard on 04.07.1995. Mere failure to dispute the constitution of Boardwould not mean that the 1948 Deed or 1973 Deed is rendered otiose.The constitution of the Board by the Wakif Mutawalli is in relation to therequirements of the Hamdard to carry out the functions of the Board butEthat does not rewrite the Rule of Succession contemplated afteramendments in 1948 Deed in the year 1973.

55. The argument that the Appellant is involved in criminal casesis again not relevant at this stage. 1973 Deed provided for disqualificationof conviction in criminal case involving moral turpitude. None of theFcriminal prosecution launched against the Appellant have ended up inconviction, therefore, there is no disqualification attached to the Appellantat this stage.

56. The grant of mandatory injunction is not prohibited even inSamir Narain Bhojwani case (supra). It has held that unless clearGand prima facie material justifies a finding that status quo has beenaltered by one of the parties the order in mandatory injunction can begiven.

57. The ad interim mandatory injunction, is to be granted not atthe asking but on strong circumstance so that to protect the rights andinterest of the parties so as not to frustrate their rights regarding mandatoryH

injunction. In Deoraj vs. State of Maharashtra and Others[18], thisCourt held that Court would grant such an interim relief only if it issatisfied that withholding of it would prick the conscience of the Courtand do violence to the sense of justice, resulting in injustice beingperpetuated throughout the hearing, and at the end the Court would notbe able to vindicate the cause of justice. Therefore, in appropriate case,ad-interim injunction in mandatory form can be granted. The Court heldas under:-

“12. Situations emerge where the granting of an interim reliefwould tantamount to granting the final relief itself. And then theremay be converse cases where withholding of an interim reliefwould tantamount to dismissal of the main petition itself; for, bythe time the main matter comes up for hearing there would benothing left to be allowed as relief to the petitioner though all thefindings may be in his favour. In such cases the availability of avery strong prima facie case — of a standard much higher thanjust prima facie case, the considerations of balance of convenienceand irreparable injury forcefully tilting the balance of the casetotally in favour of the applicant may persuade the court to grantan interim relief though it amounts to granting the final relief itself.Of course, such would be rare and exceptional cases. The courtwould grant such an interim relief only if satisfied that withholdingof it would prick the conscience of the court and do violence tothe sense of justice, resulting in injustice being perpetuatedthroughout the hearing, and at the end the court would not be ableto vindicate the cause of justice. Obviously such would be rarecases accompanied by compelling circumstances, where the injurycomplained of is immediate and pressing and would cause extremehardship. The conduct of the parties shall also have to be seenand the court may put the parties on such terms as may beprudent.”

58. The argument that under Order XXXIX Rules 1 and 2 of theCode, the Court has the jurisdiction to maintain the status of the partieson the date of filing of the suit or on the date of passing of the order butcannot direct the parties to do something which was not in existence atthe 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 A

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Ain a routine manner as the Plaintiff is required to have a case whichshould be of higher standard than mere prima facie case. But in view ofthe agreement between the parties, as recorded by the Division Benchin an earlier round of litigation the primary question was agreed to bethat who is to act as Chief Mutawalli. Both learned Single Judge and theDivision Bench has examined such question only. Even, before this Court,Bthe parties have argued primarily on the question as to who shall beChief Mutawalli. Therefore, a prima-facie opinion would lead toconsequential order in respect of management of the affairs of theHamdard.

59. Thus, in view of above the appeals are allowed. The orderCpassed by learned Division Bench on 27.11.2018 is set aside and that ofthe order of learned Single Bench on 25.10.2017 is restored. The partieswill additionally continue with the arrangements arrived at in respect ofthe management* of the Hamdard in terms of the resolution dated28.04.2015.D60. It is needless to say that decisions of the suits shall be on thebasis of evidence to be led by the parties as the present order is in thecontext of deciding ad interim injunction application only.

61. Keeping in view the nature of disputes and the evidence to beled, we further order that an endeavour shall be made to decide the suitEexpeditiously by granting maximum period of three months to each oftwo sets of parties to conclude their respective evidence so that an earlydecision is arrived at to finally conclude the first stage of disputes betweenthe parties.

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Divya Pandey

Appeals allowed.

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*Ed. Note - Word ‘management’ substituted with the word ‘banking operations’ by subsequent Order as reported in [2019] 6 SCR 437.