ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA & ANR. versus PATTAKAL CHERIYAKOYA & ORS. on 1 August 2019

ALIYATHAMMUDA BEETHATHEBIYYAPPURAPOOKOYA & ANR.

v.

PATTAKAL CHERIYAKOYA & ORS.

(Civil Appeal No.9586 of 2010)

AUGUST 01, 2019

[MOHAN M. SHANTANAGOUDAR AND

AJAY RASTOGI, JJ.]

Muslim Law – Succession – To the office of mutawalli –Exception to the general rule against hereditary succession –Dispute pertains to the office of mutawalli of the Andrott Jumahmosque situated in Lakshadweep – Respondents, seniormostmembers of the Pattakal family, claim to be the descendants of oneSaint Ubaidulla, stated to have built the mosque and was its firstmutawalli – They claim that by customary tradition, the office of themutawalli of the mosque is vested with their family– Appellants,representatives of residents of the Andrott Island claim that themosque was built by the inhabitants of the island and the respondentsnever had customary right to the office of mutawalli, and the rightto select the mutawalli should vest with the people of the local area– Respondents filed suit before the Waqf Tribunal for declarationthat the office of mutawalli of the mosque is vested with their family– Suit decreed – High Court on appeal remanded it back to theTribunal – Suit dismissed – High Court decreed that the office ofmutawalli was vested with the respondents by custom –Held: It cannotbe said that the High Court exceeded the scope of its revisionaljurisdiction – Historical materials corroborate that Ubaidulla wasthe first mutawalli of the mosque and that after his demise, hisdescendants, i.e. the Pattakal family, were holding the office of Kaziand managing the mosque as mutawallis turn by turn – Appellantshave not produced any contrary historical opinion– Appellantscould not establish that there was breach in the respondents’customary right of holding the post of mutawalli due to the formationof the committee in 1966 which existed till 1972 or due to thecompromise decree (passed in suit between the appellants’ andrespondents’ predecessors, as per which the mosque was to bemanaged by the committee elected by local residents) which is

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Adeclared as void – Muslim law does not recognize an inherent rightof succession to the office of mutawalli – However, such a rightmay be shown on the basis of certain exceptions, which includesthe creation of a custom to that effect – Respondents have beenable to establish customary right to the office of mutawalli of theJumah mosque, which is not unreasonable or opposed to publicBpolicy – Waqf Act, 1995 – ss. 3(i), 64, 69(2) and 83(9) – EvidenceAct, 1872 – s.35, 45, 81 and 114 – Code of Civil Procedure, 1908 –Or. I, r.8 and Or. XXIII, r.3B – Wakf Act, 1954 – ss.4,5 and 60.

Waqf Act, 1995 – s.83(9) – Revisional jurisdiction of the HighCourt against order of the Waqf Tribunal – Scope of – Discussed.C

Evidence Act, 1872 – ss.35, 45 and 81 – Gazette and contentsthereof – Appreciation of – Held: Gazette is an official recordevidencing public affairs, and its genuineness is presumed u/s.81–Moreover, u/s.35, an entry made by the Gazetteer in discharge ofhis official duty is a relevant fact – Any fact recorded by theDGazetteer may also be considered as expert opinion u/s.45 –Therefore, the contents of the Gazette can be taken into account todiscover the historical materials contained therein, which the Courtmay consider in conjunction with other evidence and circumstancesin adjudicating a dispute, even if it may not be conclusive evidenceEof the fact-in-issue.

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

Conclusion

Customary Law – Claim as to a customary right to succeed tothe office of mutawalli – Proof of – Held: A person claiming aFcustomary right to succeed to the office of mutawalli would have toshow that the waqif (founder of the waqf) intended for the office todevolve through a practice of hereditary succession – In the absenceof any express directions in the waqfnama to this effect, the claimantwould have to show that such practice has been in existenceGthroughout the history of the trust, and not merely for a fewgenerations – Burden of proof would be higher with respect to apublic waqf, than a family trust – Muslim Law.

Dismissing the appeals, the Court

HELD: 1.1 Ordinarily, while revisional jurisdiction does notHentitle the High Court to interfere with all findings of fact recorded by lower Courts, the High Court may correct a finding of fact if ithas been arrived at without consideration of material evidence,is based on misreading of evidence, is grossly erroneous suchthat it would result in miscarriage of justice, or is otherwise notaccording to law. The scope of such revisional jurisdiction is widerwhen the High Court is vested with the power to examine thelegality or propriety of the lower Court’s order under the statutefrom which the revisional power arises. In such a situation, theHigh Court may also examine the correctness of findings of fact,and re-appraise the evidence (Ram Dass v. Ishwar Chander, (1988)3 SCC 131). It is not disputed that Ubaidulla had come to Androttand converted the people of the island from Hinduism to Islam.The High Court was rightly of the opinion the Tribunal need nothave probed further for positive proof after noting all the historicalfacts proved. Thus, the High Court in the impugned judgmenthas not entered into a rehearing or reassessment of the findingsof fact arrived at by the Wakf Tribunal. Rather, the Court hasrightly noted that the Tribunal did not apply the appropriatestandard of proof to be applied in a civil suit, i.e. the standard ofpreponderance of probability. Therefore, it cannot be said thatthe High Court exceeded the scope of its revisional jurisdictionin any manner. [Paras 12, 13] [976-D-G; 977-C-D]

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

1.3 Since this issue relates to a mosque constructed almost1300-1400 years ago, it is impossible to find contemporary proofof the construction of the same. The Gazetteer for theLakshadweep Islands, as recently as 1977, has recorded that AB

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AUbaidulla was the first musaliyar in Andrott and is buried in theAndrott mosque. The Gazetteer, as well as the then Collector,gave credence to this account in spite of inaccuracies relating tothe date of conversion of the inhabitants. The Gazette is an officialrecord evidencing public affairs, and its genuineness is presumedunder Section 81 of the Evidence Act, 1872. Moreover, underBSection 35 of the Evidence Act, an entry made by the Gazetteerin discharge of his official duty is a relevant fact. Any fact recordedby the Gazetteer may also be considered as expert opinion underSection 45 of the Evidence Act. Therefore, the contents of theGazette can be taken into account to discover the historicalCmaterials contained therein, which the Court may consider inconjunction with other evidence and circumstances in adjudicatinga dispute, even if it may not be conclusive evidence of the fact-in-issue (Bala Shankar Mana Shankar Bhattjee v. CharityCommissioner, Gujarat State, 1994 Suppl. (2) SCR 687). Such arecord cannot be challenged by the appellants merely on theDground that it is not a recent publication. Moreover, irrespectiveof the date of conversion of the island’s inhabitants, had Ubaidullanot had a significant connection to the mosque, there would havebeen no reason for him to be buried there and for the tomb to bevenerated. Even if the book(Ex A37) is disregarded on the groundEthat it was written by Respondent No. 2’s relative (that too afterthe suit was filed), other independent historical materialscorroborate that Ubaidulla was the first mutawalli of the mosque,that he married a female convert and established the Pattakaltharawad, and that after his demise, his descendants, i.e. thePattakal family, were holding the office of Kazi and managing theFmosque as mutawallis turn by turn. Moreover, as the High Courthas rightly observed, these materials refer to the history of theisland, its administration, the local culture and economy, etc., allof which constitute historical facts, and these materials qualify ashistorical literature. Hence, the appellants’ contention that theseGmaterials are legendary or mythological in nature, disagreed with.The appellants, on the other hand, have not produced any contraryhistorical opinion that states that Ubaidulla was not the firstmutawalli and that his descendants did not continue to hold theoffice of mutawalli, or any historical proof to show that the mosquewas being managed by local residents or by a committee. Thus,H

no reason to interfere with the finding by the High Court that therespondents have held the office of mutawalli of the mosque sinceits establishment. [Para 15] [978-F-H; 979-A-G]

1.4 It is not under dispute that this office can be customary.This is also evident from the definition of ‘mutawalli’ in Section3(i) of the Waqf Act, 1995, which includes a person who ismutawalli by virtue of any custom. Muslim law does not recognizean inherent right of succession to the office of mutawalli. However,various scholars on Muslim law have opined that such a rightmay be shown on the basis of certain exceptions, which includesthe creation of a custom to that effect. a claim of hereditarysuccession may be accepted if it is founded in a direction to thateffect by the waqif (i.e. the founder of the waqf). Such a directionmay be presumed from a practice of successive appointmentsmade from amongst the waqif’s family members. Even thedecisions which have held that there is no right to hereditarysuccession to the office of mutawalli under Muslim law do notsupport the appellants’ contention that there cannot be anexception by way of custom to the general rule affirmed in thosedecisions. The Waqf Act, 1995 itself acknowledges that a waqfmay have a hereditary mutawalli. This is evident from the provisoto Section 69(2), dealing with the power of the Waqf Board toframe a scheme for the administration of a waqf. A person claiminga customary right to succeed to the office of mutawalli would haveto show that the waqif intended for the office to devolve througha practice of hereditary succession. In the absence of any expressdirections in the waqfnama to this effect, the claimant would haveto show that such practice has been in existence throughout thehistory of the trust, and not merely for a few generations, suchthat the waqif’s intention that the office should be hereditary canbe presumed. The burden of proof would be higher with respectto a public waqf, such as the suit waqf in the instant case, than afamily trust. A custom in order to be legal and binding must becertain, reasonable and acted upon in practice for a long periodwith such invariability and continuity that it has become theestablished governing rule in a community by common consent.It is incumbent upon the party relying on the custom to plead andprove it. While no person can claim the office of mutawalli merely A

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Aby virtue of being an heir of the waqif or the original mutawalli, ifthey can show through a long-established usage or custom thatthe founder intended that the office should devolve throughhereditary succession, such usage or custom should be followed.Additionally, the practice would have to comply with therequirements which are generally applicable while proving aBcustom, i.e. it must be specifically pleaded, and should be ancient,certain, invariable, not opposed to public policy, and must beproved through clear and unambiguous evidence. Therespondents in paragraph 2 of their plaint in O.S. No. 1/1998 havespecifically pleaded that the office of the mutawalli is vested inCthe Pattakal family ‘by virtue of immemorial custom and usage.’ Itcan be inferred that even prior to the enforcement of the KazisAct, the government appointed a Kazi for Andrott Island, for alimited duration only, on the request of the inhabitants. Therefore,such appointment would not prejudice the respondents’ customaryright to manage the Jumah mosque. In any event, a singularDartificial break or gap in the exercise of a customary right, thattoo by executive orders, would not lead to abrogation of thecustomary right itself, unless such break constitutes a recurringinfringement or leads to conferment of title in the opposite party.The appellants have not been able to show that apart from theEinstances mentioned in Ex B8 or B9, anybody else was functioningas the Kazi-cum-mutawalli of the mosque since ages prior to thefiling of the suit, so as to constitute a recurring infringement orto confer title upon a third party. On the other hand, therespondents have produced considerable documentary evidenceto show that members of the Pattakal family were functioning asFmutawalli since the establishment of the mosque. Thus, theappellants’ argument in this regard fails.[Paras 16-26, 29][979-H; 980-A-B; 982-B, C, G-H; 983-C, E-H; 984-E-G; 985-A;988-G-H; 989-B-C]

1.5 The committee was only in existence from 1966 toG1972 and that too only to advise the mutawalli in relation to therepair and maintenance of the mosque. Entries made in andaround 1967 regarding the Jumah mosque in the List of Wakfsand the Register of Wakfs under the Wakf Act, 1954, evidencethat the office of mutawalli was customarily vested in theHrespondents, and not in the committee, during the period to which

the entries pertain. Since the List of Wakfs (Ex A3) relied uponby the respondents is a Gazette notification, the entry containedtherein showing that the office of mutawalli was held by thePatakkal family will constitute a relevant fact under Sections 35,45 and 81 of the Evidence Act. Both the Tribunal and the HighCourt have concurrently found that it is an admitted fact that anenquiry was made by the Waqf Board pertaining to the Jumahmosque in 1967. Appellant No.1 had also deposed before theTribunal about having participated in this enquiry, after whichthe List was published. Thereafter, no complaint was made againstthe entry in the List. Hence, the appellants cannot at this stageclaim that the entry made is incorrect. The Register of Wakfs isprepared by the Wakf Commissioner, an official appointed by theState Government, hence an entry made therein is an entry madeby a public official in performance of his official duty and isconsidered a relevant fact under Section 35 of the Evidence Act.Hence the entry made in the Register of Wakfs (Ex A4) showingPattakal Koyammakoya as the mutawalli of the Jumah mosque isa relevant fact for the purpose of deciding this dispute. UnderOrder I Rule 8, CPC, which pertains to representative suits, aperson may sue or defend on behalf of others and for the benefitof others having the same interest, with the permission of theCourt. The object of Order I Rule 8 is to facilitate the decision ofquestions in which a large number of persons are interestedwithout recourse to ordinary procedure. Per Order XXIII Rule3B, in order to compromise in a representative suit, it is necessaryto obtain the leave of the Court. Before grant of leave tocompromise, the Court needs to give notice in such a manner asit may think fit, to such persons as may appear to it to beinterested in the suit. Even assuming that the respondents’contention is accepted that the said suit was not strictly filed underOrder I Rule 8, it would be regarded in the nature of arepresentative suit for the purposes of Explanation (c) to OrderXXIII Rule 3B. Explanation (c) provides that the term‘representative suit’ includes suits where the compromise decreepassed therein becomes binding on persons not named as partiesto the suit. In O.S. No.10/1974, Pattakal Koyammakoya wasrepresenting the respondent family’s interests in his capacity asKaranavan of the family. The appellants before this court have AB

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Aalso not disputed that the compromise decree was without leaveof the court and without notice to interested family members.Such violations of Order XXII Rule 3-B cannot be said to bemerely procedural, and go to the root of the matter since theydeprive the affected parties of the chance to question the termsof the compromise that they are going to be bound by. Since bothBthe conditions required under Order XXIII Rule 3B were notcomplied with, the compromise decree was void. Further, inaddition to the above procedural violation, the compromise decreeis also illegal insofar as it fails to comply with Section 60 of theWakf Act, 1954, which provides that no suit in any Court by orCagainst the mutawalli of a wakf relating to the rights of themutawalli shall be compromised without the sanction of the WakfBoard. Rather than obtaining the sanction of the Wakf Board priorto the decree, the compromise decree mentions in paragraph 7that the decisions taken therein are to be subsequently intimated

to the Wakf Board. The compromise decree was illegal and void.DThe abrogation of custom cannot be inferred from a mereindividual declaration (i.e. the admissions made by PattakalKoyammakoya Thangal in the decree) in the absence of anycontinuous course of conduct by the family to that effect. Therespondents’ family was not given notice before passing of theEcompromise decree and did not have any say with respect to theterms framed therein, and hence it cannot be said that the decreeis binding against them. Thus, the appellants have not been ableto establish that there was a breach in the respondents’ customaryright of holding the post of mutawalli due to the formation of thecommittee in 1966 which existed till 1972 or due to theFcompromise decree which is declared as void. [Paras 30, 32 and33] [989-G-H; 90-C, D-F; 992-C-F; 993-A-D]

1.6 There cannot be any dispute that the mutawalli has noright in the property belonging to the waqf, and is merely asuperintendent or manager. Hence, the respondents’ right toGoffice of mutawalli does not divest the waqf of its public character.Moreover, the exercise of any customary right to succession willbe necessarily subject to the provisions of the Waqf Act, 1995,which provides broad powers to the Waqf Board for supervisingthe administration of a waqf. Even if the mutawalli belongs to theHfamily of the waqif, he is not immune from removal in the case of mismanagement of the waqf, and must administer the waqf inaccordance with the principles of common prudence and probity.It cannot be said that the respondents’ exercise of customaryright to the office of mutawalli is unreasonable orviolates publicpolicy. The respondents have been able to establish a customaryright to the office of mutawalli of the Jumah mosque, under thefacts and circumstances of this case, which is not unreasonableor opposed to public policy. The respondents have through clearand unambiguous evidence shown a practice of continuous andinvariable devolution of the office of mutawalli through successiveappointments from within the Patakkal family, beginning with theinstitution of the mosque itself. This evidence is sufficient to drawa presumption that such hereditary devolution was as per theintention of Ubaidulla, the original wakif, therefore also satisfyingthe specific requirements for proving a custom of hereditarysuccession to the office of mutawalli. [Paras 34, 35] [994-A-B;995-B-E]

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

Bala Shankar Mana Shankar Bhattjee v. CharityCommissioner, Gujarat State[1994] 2 Suppl. SCR 687– relied on.

Sayed Ahamedkoya Thangal v. Administrator, (1997) 2KLJ 362;Mt. Sardar Bibi v. Haq Nawaz Khan,AIR1934 Lahore 371; Ram Dass v. Ishwar Chander(1988)3 SCC 131 : [1988] 1 Suppl. SCR 239;AtimannessaBibi v. Abdul Sobhan, (1916) 43 Cal 467 ;In ReMahomed Haji Haroon KadwaniILR (1935) 59 Bom424; Bebee Syedun v. Syed Allah AhmadW.R. 1864,327 (Calcutta High Court);Shah Gulam RahumtullaSahib v. Mahommed Akbar Sahib8 Mad. H.C. Rep.63 (1875);Phatmabi v. Haji A. Musa Sahib(1915) 38Mad. 491; Kalandar Batcha Sahib v. Jailani SahibAIR1930 Mad 554 ;H.H. Mir Abdul Hussein Khan v. BibiSona DeroAIR 1917 PC 181;Ramalakshmi Ammal v.Sivanantha Perumal Sethurayar(1871-72) 14 Moo IA570 ; Muniandi Kone v. Sri Ramanatha SethupathiAIR1982 Madras 170 ;K.A Srinivasa Ayyangar v. S.Ramanujachariar1941 (1) M.L.J 322 – referred to.

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AS.A Khader in Law of Wakfs (1999, Page 33);Mulla inPrinciples of Mahomedan Law, 21[st] Edn., 2017,Prof. Iqbal Ali KhanEdn.; Fyzee’s Outlines ofMuhammedan Law(5[th] Edn., 2008, Prof. TahirMahmood Ed., p. 49) – referred to.

Case Law Reference

From the Judgment and Order dated 18.12.2007 of the High Courtof Kerala at Ernakulam in C.R.P. No. 460 of 2006 (A)

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Civil Appeal Nos. 9588, 9587 of 2010

Shekhar Naphade, Sr.Adv., Vivek Chib, Ms. Pracheta Kar,Kaushal Sharma, Neeraj Shekhar, A. Raghunath, Sayyid Nilamuddin, H

Sayyid Saifudheen, S. Lakshmiu Iyer, Abhikalp Pratap Singh, Advs. forthe Appellants.

R. Basant, Thomas P. Joseph, Sr. Advs., K. Rajeev, A. Raghunath,E.M.S. Anam, A.D. Sikri, Rajiv Mehta, Advs. for the Respondents.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J.

1. Interlocutory Application No. 93605 of 2018 in Civil AppealNo. 9586 of 2010 for deleting the names of appellant Nos. 3 and 4 andrespondent No. 7 from the array of parties is allowed.

2. These appeals arise out of the judgment dated 18.12.2007 ofthe High Court of Kerala at Ernakulam in C.R.P. Nos. 460/2006 and462/2006. By the impugned judgement, the High Court decreed O.S.No. 1/1998 and dismissed O.S. No. 1/2001. It is relevant to note thatO.S. No. 1/1998 was filed by the common respondents in these appeals,whereas O.S. No. 1/2001 was filed by the appellants in C.A. Nos. 9587/2010 and 9588/2010.

3. The present dispute pertains to the office of mutawalli of theAndrott Jumah mosque situated in Lakshadweep. The mosque ispresently a public waqf registered with the Lakshadweep Waqf Board.The respondents herein are the seniormost male members of the differentthavazhies (branches of descendants through the female line) of thePattakal family. They claim to be the descendants of one Saint Ubaidulla,who is stated to have built the Andrott Jumah mosque, and who was itsfirst mutawalli. Thus, they claim that by customary tradition, the officeof the mutawalli of the mosque is vested with their family. It is theircase that the members of the family choose the mutawalli from amongstthemselves, and Respondent No. 1 is functioning as the present mutawalliof the mosque.

The appellants in C.A. No. 9586/2010 are members of theAliyathammuda tharawad and claim to be the khateebs (sermon-givers)in the mosque. The appellants in the connected appeals C.A. Nos. 9587/2010 and 9588/2010 claim to be suing as representatives of residents ofAndrott Island, Lakshadweep. The common contention of the appellantsin these three appeals is that the Jumah mosque was built by theinhabitants of Andrott island and was first administered by the ‘Amin A

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Aand Karanavan’ system (i.e. by the executive officer assisted by thenominated heads of local families), and subsequently by a committee ofelected public representatives from 1966-1972. The president of suchcommittee from 1966-1972 was the respondents’ predecessor PattakalKoyammakoya Thangal, who was removed from presidency in 1974after a dispute arose. It may be noted that while the appellants in C.A.BNo. 9586/2010 claim that the system of management by an electedcommittee continued after the dispute, the appellants in connected appealsC.A. Nos. 9587/2010 and 9588/2010 claim that due to this dispute,management of the mosque broke down. However, their common claimis that the respondents never had a customary right to the office ofCmutawalli, and the right to select the mutawalli should vest with thepeople of the local area.

4. It is also their common claim that a compromise decree waspassed on 16.02.1981 in O.S. No. 10/1974 between the appellants’predecessors and Pattakal Koyammakoya Thangal, as per which theDmosque was to be managed by the committee elected by local residents.The appellants’ contention is that even if there was any customary rightvested with the respondents, it was breached by the formation of thecommittee and passing of the compromise decree. However,subsequently, the respondents filed civil suit O.S. No. 1/1998 before theWaqf Tribunal, Kavarathi praying for a declaration that the office ofEmutawalli of the Jumah mosque is vested with the Pattakal family.Initially, the suit was decreed in their favour, but the High Court on appealremanded it back to the Waqf Tribunal for fresh disposal.

5. After remand, the Waqf Tribunal by its judgment dated20.05.2006 held that there was no evidence to show that the mosqueFwas being managed by an elected committee. Though the Tribunaldeclared that the compromise deed in O.S. No. 10/1974 was void, as noapplication was made for leave of the Court, and the respondents’ familywas not given notice as required under Order XXIII Rule 3B of the CivilProcedure Code (for short “CPC”), it found that the respondents, onGtheir part, had not produced any positive evidence to show that Ubaidullawas the first mutawalli of the Jumah mosque,and that the customaryright to the office of mutawalli was vested with their family i.e. Pattakalfamily. Rather, the right to manage the mosque was vested with thelocal residents. Hence, it dismissed the suit and directed the parties alongwith the Waqf Board to draft a scheme for the management of theH

mosque. Against this judgment, the respondents filed a revision petitionbefore the High Court.

6. The High Court in the impugned judgment found that there wasno evidence to show that anyone apart from the respondents hadfunctioned as mutawalli of the mosque at any point of time. It held thatthe committee in existence from 1966-1972 was only a committee foroverseeing the repairs and maintenance of the mosque, and not formanagement thereof, and agreed with the Tribunal’s reasoning withrespect to the compromise decree being void. On this basis, it decreedthat the office of mutawalli was vested with the respondents by custom.Hence, these appeals by the various appellants before us.

7. It is important to note that counsel for the various appellantshave admitted that the office of mutawalli can be a customary office.However, their contention is that such an office can be heritable bycustom only if it is specifically pleaded and proved, which was not doneby the respondents in this case.

8. Learned senior counsel for the appellants, Shri ShekharNaphade, emphatically argued before us that the High Court has exceededthe scope of its revisional jurisdiction under Section 83(9) of the WaqfAct, 1995, and acted like a first appellate Court by re-appreciating theevidence on record; and that the High Court has decreed the respondents’customary right by placing reliance upon legends, mythologies, fictionand outdated materials, which do not specifically state that Ubaidullawas the first mutawalli of the Jumah mosque.

That the book ‘Futhuhathul Jesair’ (Ex A37) should not havebeen relied upon, as it was published after the filing of the suit, andRespondent No. 2 in his deposition in O.S. No. 1/1998 admitted that itwas written by his uncle’s brother-in-law. According to the appellants, itwas purposefully written to support the respondents’ case. Reliance wasalso placed upon Ex B8 and ExB9 to show that the Pattakal familywas not managing the mosque in 1921 and 1923.

That in the Lakshadweep islands, the office of Kazi and mutawalliare one and the same, and the Kerala High Court in Sayed AhamedkoyaThangal v. Administrator, (1997) 2 KLJ 362, had held that therespondents’ family i.e. the Pattakals did not have a hereditary right tothe office of Kazi and therefore could not challenge the appointment ofa Kazi under the Kazis Act, 1880. This order having attained finality, it A

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Awas now not open to the respondents to argue in favour of a hereditaryright to the office of mutawalli, when such right has been denied for theoffice of Kazi; and that the respondents themselves admitted in the plaintin O.S. No. 1/1998 that the office of mutawalli and Kazi is one and thesame, but conveniently sought only the office of mutawalli in relief.

That the respondents have undergone partition amongst themselves,but the two partition deeds produced before the Tribunal do not mentionwhich branch of the family would continue to hold the office of mutawalli,and the same belies the respondents’ case that it was a hereditary rightwithin the family.

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That the compromise decree is binding against the respondentssince the irregularity therein found by the Tribunal was only procedural,and that the burden was on the respondents to show that the decree wasvoid, since there is a presumption under Section 114(e) of the IndianEvidence Act, 1872 that judicial acts have been regularly performed.

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Lastly, learned counsel argued that the material on record clearlyshows that the public of Andrott Island has always had a role in themanagement of the mosque, which is registered as a public waqf, andeven if the respondents have a customary right to the office of mutawalli,it is against public policy to let the management rights of a public waqfvest in one family.

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9. Per contra, learned counsel for the respondents has drawnattention to the Tribunal’s finding that the documentary evidence showedthat it was the respondents’ family which was managing the mosqueproperty. On the other hand, there was no documentary evidence toshow that the committee of public representatives formed in 1966 wasFmanaging the mosque.

He reiterated the argument made before the Tribunal pertainingto Sections 4 and 5 of the Wakf Act, 1954, under which a List of Wakfsis published by the Wakf Board after due inquiry by the SurveyCommissioner. Before the Tribunal, the respondents had produced ExA3,Gthe Gazette notification issued by the Lakshadweep Wakf Boardcontaining the List of Wakfs published under Section 5, which showedthat the office of mutawalli of the Jumah mosque was held by “membersof pattakal (family) under the supervision of Amins andKaranavans”. Learned counsel also referred to Ex A4 and Ex A5, thecertified copy of the entry in the statutory Register of Wakfs, and theH

receipt for wakf registration dated 5.3.1967 respectively, both of whichshow the name of the respondents’ predecessor Pattakal Koyammakoyaas mutawalli for the Jumah mosque.

Learned counsel relied upon these documents to contradict theclaim that the committee constituted in 1966 was managing the mosqueat that time. Further, since these documents were not challenged by theappellants before the institution of the suit, they could not now claim thatthe respondents were not holding the office of mutawalli.

The respondents relied upon the judgment of the Full Bench ofthe Lahore High Court in Mt. Sardar Bibi v. Haq Nawaz Khan,AIR1934 Lahore 371, wherein it was held that a long established custompracticed by a family or community cannot be abrogated by a mereindividual declaration to that effect, but such abrogation has to be inferredfrom the course of conduct of the family or community over an extendedperiod of time. Hence, even if the appellants’ arguments with respect tothe committee or the compromise decree were accepted, the respondents’customary right to office of mutawalli would not be abrogated simplybecause Pattakkal Koyammakoya Thangal took up of the presidency ofthe committee or entered into the compromise dated 16.02.1981 asKaranavan of the Pattakal family.

Learned counsel for the respondents finally stressed that both theCourts have rightly held that the compromise decree dated 16.02.1981was not only illegal but also void; that merely because of certain smallgaps in the 1920s in which the Pattakal family did not hold the office ofmutawalli, the customary office held by the family could not be held tobe discontinued; and that mere artificial breaks, that too for small periodsand only on a couple of occasions, could not, in law, break the continuityin the administration of the mosque by the Pattakal mutawalli.

10. From the aforementioned arguments, the following issues arise:

Firstly, whether the High Court exceeded the scope of its revisionaljurisdiction; and Secondly, whether the respondents have pleaded and proved thatthey have a customary right to the office of mutawalli in the Jumahmosque.

11. Regarding the appellants’ argument on the scope of therevisional jurisdiction of the High Court against an order of the Waqf A

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ATribunal, it is pertinent to note Section 83(9) of the Waqf Act, 1995which provides that:

“No appeal shall lie against any decision or order whether interimor otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on theBapplication of the Board or any person aggrieved, call for andexamine the records relating to any dispute, question or other matterwhich has been determined by the Tribunal for the purpose ofsatisfying itself as to the correctness, legality or propriety of suchdetermination and may confirm, reverse or modify suchCdetermination or pass such other order as it may think fit.”

(emphasis supplied)

12. It is well settled that ordinarily, while revisional jurisdictiondoes not entitle the High Court to interfere with all findings of factrecorded by lower Courts, the High Court may correct a finding of factDif it has been arrived at without consideration of material evidence, isbased on misreading of evidence, is grossly erroneous such that it wouldresult in miscarriage of justice, or is otherwise not according to law (seethe decision of the Constitution Bench of this Court in HindustanPetroleum Corporation Ltd v. Dilbahar Singh, (2014) 9 SCC 78).Importantly, the scope of such revisional jurisdiction is wider when theEHigh Court is vested with the power to examine the legality or proprietyof the lower Court’s order under the statute from which the revisionalpower arises. In such a situation, the High Court may also examine thecorrectness of findings of fact, and re-appraise the evidence (see RamDass v. Ishwar Chander, (1988) 3 SCC 131). It is in this perspectiveFthat the argument of the appellants must be considered.

13. As rightly noted by the Tribunal, it is not disputed that Ubaidullahad come to Andrott and converted the people of the island from Hinduismto Islam. The Tribunal also observed that the respondents/plaintiffs wereUbaidulla’s descendants “by all probabilities”, keeping in mind theGhistorical materials produced. It was further observed that historianswere of the unanimous opinion that Ubaidulla was the first Kazi/mutawalliof the mosque and that members of his family had held the office ofKazi in succession. However, in spite of these observations, the Tribunaldid not go on to render a finding to the effect that the respondents hadbeen holding the post of mutawalli in succession. Instead, it concluded H

that Ubaidulla was an alien who could not have owned land on the island,and hence, the mosque could not have been constructed by him, andthere was no positive evidence that he and his descendants weremutawallis of the Jumah mosque.

The High Court noted that the findings of the Tribunal contradictedits earlier observations, and held that since the mosque was constructedas long ago as in the seventh century, no evidence other than the historicalmaterial on record could be obtained to show, that in all probability,Ubaidulla had indeed constructed the mosque. There could not be specificor direct evidence of the donation of land for constructing the mosque,or of the construction of mosque itself, and so on. The Court was rightlyof the opinion the Tribunal need not have probed further for positiveproof after noting all the historical facts proved.

Thus, it is evident that the High Court in the impugned judgementhas not entered into a rehearing or reassessment of the findings of factarrived at by the Wakf Tribunal. Rather, the Court has rightly noted thatthe Tribunal did not apply the appropriate standard of proof to be appliedin a civil suit, i.e. the standard of preponderance of probability.

Therefore, it cannot be said that the High Court exceeded thescope of its revisional jurisdiction in any manner.

14. To consider the appellants’ argument that the Pattakal familydid not have a customary right to the office of mutawalli of the Jumahmosque, we may first address the minor argument raised by the appellantswith respect to the respondents’ partition deeds. The Tribunal in itsjudgment has specifically noted that the partition deeds only relate to thedivision of properties within the tharawad and do not deal with the rightof management of the mosque. The respondents themselves are claimingthe office of mutawalli as a customary right, not as a proprietary right.It has even been admitted by learned counsel for the appellants duringthe course of arguments that the same cannot be a proprietary right.Hence, the partition deeds could not have made any provision with respectto the office of mutawalli, and the non-mentioning of this office in thepartition deeds will not prejudice the claim of the respondents to acustomary right to succeed to this office.

15. We would now like to address the appellants’ contention thatthe materials adduced by the respondents to show that they havecontinuously held the office of mutawalli should not have been relied A

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Aupon by the High Court, as they were not contemporary and werefictitious in nature. We find ourselves unable to agree with this contentionfor the reasons laid out below.

We have gone through the material which the High Court hasrelied upon to grant the respondents’ claim. The first is Ex A36, A ShortBAccount of the Laccadive Islands and Minicoy, by R.H. Ellis, publishedin the year 1924. Ellis was at that time the Collector for the territory.The book mentions on page 16that Saint Ubaidulla was regarded as thefirst musaliyar (proselytizer) in the area, and his descendants till 1920held the office of Kazi of Andrott Island. The second is a note preparedin 1977 by the Gazetteer for the Lakshadweep islands. Though thisCdocument was not marked as an exhibit, counsel for the appellants statedthat it had nevertheless been placed and relied upon before the Tribunaland the High Court. This publication on page 44 notes that Ubaidullawas the first musaliyar in Andrott and his grave is enshrined within theAndrott mosque and regarded with deep veneration.

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The High Court also noted the observation in the book Deepolpathy(published in 1960) (Ex A35) that the respondent Pattakal family wasdescended from Saint Ubaidulla, who was the first Kazi of the mosque,and that members of the Pattakal family were its traditional Kazis, andcontinued to be so at the time of writing. The High Court also appreciatedEan entry in the Encyclopedia Britannica (edition unspecified), as well ascertain remarks in the Arabic book Futhuhathul Jesair (Ex A37), tothe same effect.

We agree with the opinion of the High Court that since this issuerelates to a mosque constructed almost 1300-1400 years ago, it isFimpossible to find contemporary proof of the construction of the same.The Gazetteer for the Lakshadweep Islands, as recently as 1977, hasrecorded that Ubaidulla was the first musaliyar in Andrott and is buriedin the Andrott mosque. The Gazetteer, as well as the then CollectorR.H. Ellis, gave credence to this account in spite of inaccuracies relatingto the date of conversion of the inhabitants.G

It is important to note at this stage that the Gazette is an officialrecord evidencing public affairs, and its genuineness is presumed underSection 81 of the Evidence Act, 1872. Moreover, under Section 35 ofthe Evidence Act, an entry made by the Gazetteer in discharge of hisofficial duty is a relevant fact. Any fact recorded by the Gazetteer may H

also be considered as expert opinion under Section 45 of the EvidenceAct. Therefore, the contents of the Gazette can be taken into account todiscover the historical materials contained therein, which the Court mayconsider in conjunction with other evidence and circumstances inadjudicating a dispute, even if it may not be conclusive evidence of thefact-in-issue (see Bala Shankar Mana Shankar Bhattjee v. CharityCommissioner, Gujarat State, 1994 Suppl. (2) SCR 687). Such a recordcannot be challenged by the appellants merely on the ground that it is nota recent publication.

Moreover, irrespective of the date of conversion of the island’sinhabitants, had Ubaidulla not had a significant connection to the mosque,there would have been no reason for him to be buried there and for thetomb to be venerated. Even if the book Futhuhathul Jesair (Ex A37)is disregarded on the ground that it was written by Respondent No. 2’srelative (that too after the suit was filed), other independent historicalmaterials corroborate that Ubaidulla was the first mutawalli of themosque, that he married a female convert and established the Pattakaltharawad, and that after his demise, his descendants, i.e. the Pattakalfamily, were holding the office of Kazi and managing the mosque asmutawallis turn by turn.

Moreover, as the High Court has rightly observed, these materialsrefer to the history of the island, its administration, the local culture andeconomy, etc., all of which constitute historical facts, and these materialsqualify as historical literature. Hence, we disagree with the appellants’contention that these materials are legendary or mythological in nature.

The appellants, on the other hand, have not produced any contraryhistorical opinion that states that Ubaidulla was not the first mutawalliand that his descendants did not continue to hold the office of mutawalli,or any historical proof to show that the mosque was being managed bylocal residents or by a committee. Thus, we find no reason to interferewith the finding by the High Court that the respondents have held theoffice of mutawalliof the mosque since its establishment.

16. It now remains to be seen whether the material relied uponby the High Court was sufficient to establish a customary right to theoffice of mutawalli in favour of the respondents. We would like toreiterate at this stage that it is not under dispute that this office can becustomary. This is also evident from the definition of ‘mutawalli’ in A

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ASection 3(i) of the Waqf Act, 1995, which includes a person who ismutawalli by virtue of any custom.

17. At the outset, it is pertinent to note that Muslim law does notrecognize an inherent right of succession to the office of mutawalli. InAtimannessa Bibi v. Abdul Sobhan, (1916) 43 Cal 467, the High CourtBof Calcutta laid down the proposition as follows:

“…though a descendant of the founder has a preferentialclaim to the office of mutawalli, he does not becomemutawalli by right of inheritance but has to be appointedsuch by the “Qadi” who may be supersede him if he is notCqualified.”

An almost identical position was taken by the High Court ofBombay in In Re Mahomed Haji Haroon Kadwani, ILR (1935) 59Bom 424. Similarly, the High Court of Calcutta in Bebee Syedun v.Syed Allah Ahmad, W.R. 1864, 327 held that hereditary succession isDextremely unlikely in offices in Mohammedan religious endowments.

18. However, various scholars on Muslim law have opined thatsuch a right may be shown on the basis of certain exceptions, whichincludes the creation of a custom to that effect. In this respect, we mayrefer to the following discussion by S.A. Khader in Law of Wakfs (1999,Epage 33):

“Hereditary right to the office of mutawalli: Muslim law does notrecognise any right of inheritance or rule of hereditary successionto the office of mutawalli. There are two exceptions to thisprinciple:

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(1) Where the founder has laid down the rule of hereditarysuccession to the office in which case the rule has to be adheredto, and

(2) Where the office of mutawalli becomes hereditary by customin which case the custom should be followed.”(emphasis supplied)

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A similar observation has been made by Mullain Principles ofMahomedan Law (21[st] edn., 2017, Prof. Iqbal Ali Khan ed.) (for short“Mulla”) on page 253:

“The Mahomedan law does not recognize any right of inheritanceto the office of mutawalli. But the office may become hereditary H

”by custom, in which case, the custom should be followed.(emphasis supplied)

19. We have also given due consideration to several judgments ofvarious High Courts which appear to support the above observations,inasmuch as they recognise that an exception can be made to the generalrule against hereditary succession and lay down certain principles in thisregard for proving such an exception.

In Shah Gulam Rahumtulla Sahib v. Mahommed Akbar Sahib,8 Mad. H.C. Rep. 63 (1875), the question before the High Court waswhether the office of the custodian of a waqf could devolve throughprimogeniture. The Court opined in this case that in cases of successionto the office of the custodian of a waqf, succession would be determinedin terms of the rules established by the founder of the waqf, which couldbe inferred from evidence of usage.

Another leading precedent in this regard is Phatmabi v. Haji A.Musa Sahib, (1915) 38 Mad. 491. In this case, an heir of the previousmutawalli laid claim to the office through hereditary devolution. In thisbackdrop, the High Court of Madras observed as follows on page 494:

“Where there has been a series of appointments of Mutawallis, itis generally assumed that the appointments have been valid, whichimplies that such appointments have been made in accordancewith the terms of the original dedication relating to the mode inwhich the successive appointments have to be made.” (emphasissupplied)

On page 495 it was further observed:

“The law does not directly empower the Mutawalli of every waqfto appoint his successor but if in regard to any particular waqf it isproved that the Mutawallis have been in the practice ofnominating their successors, it is assumed that the practice had alawful origin and was founded on some provisions contained inthe waqfnama or some oral directions given by the waqifempowering the Mutawallis to nominate their successors.Provisions in the waqfnama empowering the Mutawallis tonominate their successors are so usual that it would perhaps berepresenting the present state of authorities if it were said that theCourts assume the existence of such a provision in the dedication, A

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unless the contrary is proved… It will be seen therefore that aclaim based on the allegation either that the office is hereditary orthat the Mutawalli nominated the claimant as his successor mustultimately have reference to the actual or the presumed”directions of the waqif at the time when the dedication was made.

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(emphasis supplied)

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The above observations of the Court indicate that a claim of he-reditary succession may be accepted if it is founded in a direction to thateffect by the waqif (i.e. the founder of the waqf). Such a direction maybe presumed from a practice of successive appointments made fromamongst the waqif’s family members.

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However, in the above decision, the Court also observed that thestandard of proof in respect of such a custom would be stricter in thecase of a public waqf than for a waqf whose object was to provide forthe maintenance of the founder’s family. Hence, the High Court in thesaid matter of Phatmabi rejected the claim of Phatmabi on the groundDthat she had only been able to show three successive appointments fromher family, and there was nothing to show such persons had succeededas a matter of right of inheritance.

Similarly, in Kalandar Batcha Sahib v. Jailani Sahib, AIR 1930Mad 554, the plaintiff claimed a right to the office of the trustee, beingEthe closest male heir of the predecessor. The High Court of Madrasheld that while there was no absolute right to be appointed as ahereditary trustee under Mahomedan law, when the founder intendedthe position of trustee to be hereditary, such fact should be considered inthe appointment of trustees, unless there were strong reasons for doingFotherwise. In this case, it was found that the history of devolution of thetrust, from the original founder of the trust onwards, showed that thetrustee was always appointed from the founder’s family, and hence theoffice of the trustee was to be regarded as hereditary. Accordingly, thesuit was decreed.

20. It is also important to note that even the decisions which haveheld that there is no right to hereditary succession to the office ofmutawalli under Muslim law do not support the appellants’ contentionthat there cannot be an exception by way of custom to the general ruleaffirmed in those decisions.

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In Atimannessa (supra) and In ReMahomed Haji (supra),sincethe claimants did not plead the existence of a custom of hereditary suc-cession, the Court did not have an occasion to rule on the aspect, andhence both the decisions are silent in this regard. In Bebee Syedun(supra), while it was held that in the absence of sufficient evidence of acustom by descent, there would be a presumption against hereditarysuccession to the office of mutawalli, crucially, the Court did not findthat such a custom could not exist at all. Rather, the claim was rejectedas the plaintiff had notgone back far enough to establish a custom, as hehad only shown three generations of succession to the office of mutawalli.

21. Finally, the Waqf Act, 1995 itself acknowledges that a waqfmay have a hereditary mutawalli. This is evident from the proviso toSection 69(2), dealing with the power of the Waqf Board to frame ascheme for the administration of a waqf, which states that:

“Provided that where any such scheme provides for the removalof any hereditary mutawalli, the scheme shall also provide for theappointment of the person next in hereditary succession to themutawalli so removed, as one of the members of the committeeappointed for the proper administration of the waqf.”

22. It can be concluded from the above discussion that a personclaiming a customary right to succeed to the office of mutawalli wouldhave to show that the waqif intended for the office to devolve through apractice of hereditary succession. In the absence of any expressdirections in the waqfnama to this effect, the claimant would have toshow that such practice has been in existence throughout the history ofthe trust, and not merely for a few generations, such that the waqif’sintention that the office should be hereditary can be presumed. Theburden of proof would be higher with respect to a public waqf, such asthe suit waqf in the instant case, than a family trust.

23. We may now consider what the principles governing theestablishment of a custom under Muslim law are. It is a settled positionof 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 suchinvariability and continuity that it has become the established governingrule in a community by common consent. It is equally settled that it isincumbent upon the party relying on the custom to plead and prove it.

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AIn this regard, we may fruitfully refer to the followingobservations from Fyzee’s Outlines of Muhammedan Law (5[th] edn.,2008, Prof. Tahir Mahmood ed., p. 49) (for short “Fyzee”):

“First, the burden lies heavily upon the person who asserts toplead the custom relied upon and prove clearly that he isBgoverned by custom and not by the general law. Secondly, as tothe proof of custom, there is in law no presumption in favour ofcustom and the custom must be ancient, certain and not opposedto public policy.” (emphasis supplied)

The leading case with respect to the requirements of proving aCcustom is the decision of the Privy Council in H.H. Mir AbdulHussein Khan v. Bibi Sona Dero, AIR 1917 PC 181. Relyingupon its previous decision in Ramalakshmi Ammal v. SivananthaPerumal Sethurayar, (1871-72) 14 Moo IA 570, the Councilobserved as follows:

D“It is of the essence of special usages modifying the ordinary lawof succession that they should be ancient and invariable: and it isfurther essential that they should be established to be so by clearand unambiguous evidence. It is only by means of such evidencethat the Courts can be assured of their existence, and that theypossess the conditions of antiquity and certainty on which aloneEtheir legal title to recognition depends.” (emphasis supplied)

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24. Thus, we may conclude that while no person can claim theoffice of mutawalli merely by virtue of being an heir of the waqif or theoriginal mutawalli, if they can show through a long-established usage orcustom that the founder intended that the office should devolve throughFhereditary succession, such usage or custom should be followed.Additionally, the practice would have to comply with the requirementswhich are generally applicable while proving a custom, i.e. it must bespecifically pleaded, and should be ancient, certain, invariable, notopposed to public policy, and must be proved through clear andGunambiguous evidence.

25. Whether the aforementioned requirements have beensatisfied in the present case or not is to be considered.

As far as the requirement of specific pleadings is concerned, wefind that the appellants’ argument that the respondents have not H

specifically pleaded their customary right is patently incorrect, insofaras the respondents in paragraph 2 of their plaint in O.S. No. 1/1998 havespecifically pleaded that the office of the mutawalli is vested in thePattakal family ‘by virtue of immemorial custom and usage.’

26. Coming to the question of whether the respondents havedischarged the burden of proving a legal and binding custom in theirfavour.

As mentioned above, the Tribunal and the revisional Court have,on facts, found that historical materials unanimously establish that SaintUbaidullawas the first mutawalli of the mosque, which was constructedaround the seventh century AD, and his descendants continued to holdthe post after his death.

Additionally, the Tribunal and the High Court have taken note ofmultiple documents placed on record by the respondents, showing thatthe Pattakal family was managing the mosque property in an unbrokenchain of succession. These include, inter alia, Ex A1, a compromisepetition dated 6.12.1892 acknowledging the rights of Pattakal AhmedKhadiyar Koya in the administration of the Jumah mosque, Ex A2,another compromise petition of the year 1933 which refers to PattakalKunhikoya as the Kazi, Ex A21, a complaint dated 22.03.1935 filed bythe mukri (muezzin) of the mosque against the then mutawalli PattakalKunhikoya, Ex A3-5 and Ex A11,showing that Pattakal Koyammakoyawas the mutawalli prior to his death in 1981, Ex A6-9, consisting ofdemand notices and receipts for annual contributions made by the mosque,which show that Patakkal Pookoya Thangal was PattakalKoyammakoya’s successor from 1981 till his death in 1996, and ExA17-20, which prove that the present mutawalli is Respondent No. 1Patakkal Cheriyakoya. These documents establish that from 1892 topresent, it is the respondents’ family members who have beensucceeding to the office of mutawalli continuously. Therefore, it is provedthat the practice of succession of the respondents to the office ofmutawalli of the Jumah mosque has been in existence since antiquity,and is certain and invariable.

27. It may now be considered, firstly, whether the allegedintervention of third parties have led to breaches in the invariability andcontinuity of the custom, through the statutory appointment of a Kazi in1998 and the appointment of a non-Pattakal Kazi in 1921 and 1923, andsecondly, whether the respondents have themselves committed such A

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Abreaches through their predecessor’s participation in the committeeformed in 1966, and by entering into a compromise decree dated16.02.1981.

28. With respect to the contention pertaining to the appointmentof a Kazi in 1998, it is admitted that one Kunnasada Hamzakoya wasBappointed as Kazi of Andrott Island under the Kazis Act, 1880. Previousto this appointment, the respondents had challenged the government’snotification inviting applications for the post before the High Court inS.A. Thangal (supra), on the ground that their hereditary right tosuccession to the office of Kazi would be abrogated by the statutoryappointment, but their petition was dismissed. It is on the basis of thisCjudgment that the government proceeded to appoint such Kazi.

As was rightly observed by the High Court, the Tribunal’s findingthat the Pattakal family had lost its vested right in the office of mutawalli,based on the finding in S.A. Thangal that they had no hereditary right tothe office of Kazi of the mosque, was based on a wrong understandingDof facts and law. The dictum laid down in S.A. Thangal, which washeavily relied upon by the appellants during their arguments before thisCourt, will not come to the aid of the appellants in this matter, inasmuchas the said judgement was rendered in a different context. It is no doubttrue that in S.A. Thangal, it was observed that the petitioner thereinE(who was a member of the Patakkal family) could not claim that theposition of Kazi was hereditary in nature, particularly after the cominginto force of the Kazis Act, 1880 (which was made applicable toLakshadweep in the year 1970). However, the judgment alsoacknowledged that by virtue of Section 4 of the Kazis Act, if therespondents were performing the functions of a traditional Kazi prior toFenforcement of the Act, they could continue to do so, notwithstandingthe appointment of another person as a Kazi under the Act. This isevident from the operative portion of the judgement, which reads thus:

“13. Therefore, the petitioner cannot claim that the position ofKazi is hereditary in nature. Even if the petitioner’s contentionGthat he succeeds to the deceased Kazi, the position beinghereditary in nature, is accepted, that will not prevent the Admin-istration choosing a Kazi in terms of the Kazis Act. Appointmentof Kazi made under theAct shall not be deemed to prevent anyperson discharging any of the functions of the Kazi as per SectionH4 of the saidAct.” (emphasis supplied)

The relevant section in this regard, Section 4(c) of the Kazis Act,1880 reads as follows:

“4. Nothing in Act to confer judicial or administrativepowers; or to render the presence of Kazis necessary; orto prevent any one acting as Kazi: Nothing herein contained,and no appointment made hereunder, shall be deemed…

(c) to prevent any person discharging any of the functions of aKazi.” (emphasis supplied)

Hence, even as per the decision in S.A. Thangal, the respondentscould discharge some of the functions of a traditional Kazi despite theappointment of a different person as a Kazi under the Kazis Act.

From the aforementioned discussion, we can conclude that theappellants’ contention that the post of Kazi and mutawalli was the samein Lakshadweep islands and therefore if the respondents have lost theright to one office, they cannot claim the other is only partly correct. Wesay 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 personfunctioning as mutawalli of a mosque. This has also been noted by theTribunal in its judgement. However it is incorrect to say that the personwho was working as mutawalli/Kazi loses the post of mutawalli alsoafter he lost the post of Kazi.

The office of Kazi disputed in S.A. Thangalis a statutoryappointment under the Kazis Act, 1880. It can be inferred that after theenforcement of the Kazis Act in 1970, a legal distinction between theoffice of mutawalli and statutory office of Kazi came into play in theLakshadweep islands. The Kazis Act pertains to the appointment of aKazi for a local area where his presence may be required for performingcertain rites and ceremonies, whereas the respondents in their plainthave clearly stated that they are claiming the office of “mutawalli-cum-Traditional Kazi” of the Jumah mosque specifically. They are notcontesting the decision in S.A. Thangal or seeking appointment to thestatutory post of Kazi.

Therefore, we find that the High Court has rightly concluded thatat the time of the institution of OS No. 1/1998, the respondents werewithin their rights to seek the relief of the office of mutawalli even after A

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Atheir claim to the office of Kazi was defeated. Further, given the distinctionbetween a statutory Kazi and a mutawalli, the appointment of KunnasadaHamzakoya in 1998 will not constitute a breach of the respondents’custom in respect of the office of mutawalli.

We would like to emphasize that we have not been called upon toBdecide whether the respondents have a customary right to be the Kaziof the mosque, since the decision in S.A. Thangal is not in challengebefore us. Therefore, we desist from looking any further into the matter.

29. The appellants’ argument that the respondents’ claim to theoffice of mutawalli is defeated by the appointment of certain third partiesCas Kazis in the 1920s, i.e. before the enforcement of Kazis Act,1880 inthe area, must also be considered in the light of the above discussion.

The appellants have relied on Ex B8 and Ex B9 in this respect.Ex B8 is letter of Kazi Sayedkoya dated 25.05.1921 informing AminKachery, Andrott that his uncle Attakoya Thangal had been functioningDas Kazi in his place while he was travelling, and that Kazi Sayedkoyahad subsequently resumed the post. Ex B9 is the order of R.H. Ellisdated 12.02.1923 which inter alia assigned one Shaikinteveedu Kunhikoyato be the karnavar of Andrott and one Kasmikoya to perform the functionsof Kazi of the mosque. The appellants claim that these documents showthat the Pattakal family was not managing the mosque in that period.

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The respondents have not challenged the validity of the abovedocuments. In fact, we find that in Ex B5, it has been admitted byPattakkal Koyammakoya (the respondents’ predecessor), who was theplaintiff in O.S. No. 10/1974, in which the compromise decree dated16.02.1981 was passed, that the Shaikinteveedu family, to which theFKazis appointed in 1921 and 1923 belonged, does not belong to thePattakkal tharawad. He further admitted that Sayedkoya was appointedby the people as Kazi due to hostility towards the Pattakkal family, andthe government had accepted such appointment. After Sayedkoya’stenure expired, nobody from Sayedkoya’s family was appointed and allGthe succeeding Kazis were from the Pattakal family. It can be inferredthat even prior to the enforcement of the Kazis Act, the governmentappointed a Kazi for Andrott Island, for a limited duration only, on therequest of the inhabitants. Therefore, such appointment would notprejudice the respondents’ customary right to manage the Jumah mosque.

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In any event, a singular artificial break or gap in the exercise of acustomary right, that too by executive orders, would not lead to abrogationof the customary right itself, unless such break constitutes a recurringinfringement or leads to conferment of title in the opposite party (see thedecisions of the Madras High Court in Muniandi Kone v. SriRamanatha Sethupathi, AIR 1982 Madras 170, and K.A SrinivasaAyyangar v. S. Ramanujachariar, 1941 (1) M.L.J 322). The appellantshave not been able to show that apart from the instances mentioned inEx B8 or B9, anybody else was functioning as the Kazi-cum-mutawalliof the mosque since ages prior to the filing of the suit, so as to constitutea recurring infringement or to confer title upon a third party. On theother hand, the respondents have produced considerable documentaryevidence to show that members of the Pattakal family were functioningas mutawalli since the establishment of the mosque. Thus, the appellants’argument in this regard fails.

30. We must now consider whether the appellants have been ableto prove that the respondents had themselves breached their customaryright such that the custom was abrogated. Learned counsel for theappellants firstly drew our attention to Ex B5, the deposition of PatakkalKoyammakoya, plaintiff in O.S. No. 10/1974, mentioned supra. Headmitted that a committee was formed on 25.11.1966, composed of 14members from 4 localities of Andrott Island, of which he was President.Hence, the appellants contend that the respondents cannot claim that itwas just a repair committee and not for the management of the mosque.

It is true that in Ex B5, Patakkal Koyammakoya admitted to theformation of the committee in 1966. However, he had earlier categoricallydeposed that the committee was for overseeing the repair andmaintenance work of the mosque. Moreover, in his cross-examination,he stated that though he was continuously elected as President of thecommittee, he could not remember whether a committee was electedafter 1972. He also stated that there was no committee on the date ofdeposition (i.e. 30.04.1977). Therefore, it is evident that the committeewas only in existence from 1966 to 1972 and that too only to advise themutawalli in relation to the repair and maintenance of the mosque. Itmust also be noted that both the Tribunal and the High Court have foundthat the appellants have not produced any documentary evidence tocontrovert the deposition in Ex B5, and to show that a committee was A

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Afunctioning for the management of the mosque after 1972. We findourselves in agreement with the said finding.

On the other hand, we find merit in the respondents’ submissionthat the entries made in and around 1967 regarding the Jumah mosque inthe List of Wakfs and the Register of Wakfs under the Wakf Act, 1954,Bmentioned supra, evidence that the office of mutawalli was customarilyvested in the respondents, and not in the committee, during the period towhich the entries pertain. Since the List of Wakfs (Ex A3) relied uponby the respondents is a Gazette notification, the entry contained thereinshowing that the office of mutawalli was held by the Patakkal familywill constitute a relevant fact under Sections 35, 45 and 81 of the EvidenceCAct, as mentioned in our discussion supra pertaining to the relevance ofthe Gazetteer’s Report of 1977.

Further, it must be noted that the List of Wakfs is published onlyafter the Survey Commissioner has conducted a preliminary enquiryinto the waqf property and after the Commissioner’s report is examinedDby the Waqf Board under Sections 4 and 5 of the Wakf Act, 1954. Boththe Tribunal and the High Court have concurrently found that it is anadmitted fact that an enquiry was made by the Waqf Board pertaining tothe Jumah mosque in 1967. Appellant No. 1 had also deposed before theTribunal about having participated in this enquiry, after which the ListEwas published. Thereafter, no complaint was made against the entry inthe List. Hence, the appellants cannot at this stage claim that the entrymade is incorrect.

The Register of Wakfs is prepared by the Wakf Commissioner,an official appointed by the State Government, hence an entry madeFtherein is an entry made by a public official in performance of his officialduty and is considered a relevant fact under Section 35 of the EvidenceAct. Hence the entry made in the Register of Wakfs (Ex A4) showingPattakal Koyammakoya as the mutawalli of the Jumah mosque is arelevant fact for the purpose of deciding this dispute.

31 It is apposite to note that the Tribunal found that there was adiscrepancy insofar as the List of Wakfs mentioned that the Pattakalmutawalli was under the supervision of Amins and Karanavans, whereasthe Register entry only mentioned Pattakal Koyammakoya as themutawalli. As mentioned supra, the appellants have also claimed thatthe mosque was managed under the ‘Amin and Karanavan’ system. In G

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this regard, it must be noted that while evaluating the respondents’ claimto a customary right to the office of mutawalli, the social conditions inwhich this right was exercised must be taken into account. The followingobservations of Fyzee (5[th] edn., 2008) on page 50 are relevant in thisrespect:

“As to the evidence of custom, specific instances of its acceptanceas law may be proved; such evidence may be supplemented bygeneral evidence; previous decisions in which the custom has beenaccepted as binding are important pieces of evidence but theirreasoning may not be binding; the court must scrutinize the customset up jealously and must be careful not to be misled by pitfallsdue to unfamiliarity with social conditions.”

We find it relevant to discuss what the entry in the List of Waqfsshowing that the mosque was under the supervision of Amins andKaranavans precisely means, since this was the broader social backdropin which the respondents’ custom existed. A perusal of the “Report ofthe Commissioner for the Scheduled Castes and Scheduled Tribes” forthe year 1953, on page 284, reveals that the Amin is the executive officerappointed by the government for the Lakshadweep islands. TheKaranavans are the heads of different local families who are appointedto assist the Amin in trying civil and criminal cases. Hence, these areexecutive authorities which are separate from the mutawalli of a mosque.The Tribunal itself has noted in its judgement that the Jumah mosquemay have been under the supervision of the then administrative authoritiesas it was a very important mosque on Andrott Island, but the AminsandKaranavans were not directly managing the affairs of the mosque.Therefore, we find that the mention of the ‘Amin and Karanavan’ systemin the List of Waqfs will not weaken the respondents’ argument basedupon reliance on such List.

Though it is possible that the mutawalli belonging to therespondents’ family may have been advised by other authorities, thisdoes not mean the respondents per se did not hold the office of mutawalli.Hence we are unable to accept the appellants’ argument that therespondent’s customary right was breached due to the presence ofadvisory authorities such as the Amins and Karanavans or the committeeformed in 1966. Rather, it strengthens the argument in favour of therespondents, to show that notwithstanding the changes in theadministrative mechanism of Andrott Island over the years, which is A

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Ainevitable in any territory, it is the Patakkal family which has been at thehelm of affairs at the mosque.

32. We also find ourselves unable to agree with the contention ofthe appellants that the violations of Order XXIII Rule 3B, CPC whilepassing the compromise decree dated 16.02.1981 in O.S. No. 10/1974Bare merely procedural and do not vitiate the decree, and that the decreeshould therefore be regarded as proof of breach of custom.

Under Order I Rule 8, CPC, which pertains to representativesuits, a person may sue or defend on behalf of others and for the benefitof others having the same interest, with the permission of the Court. TheCobject of Order I Rule 8 is to facilitate the decision of questions in whicha large number of persons are interested without recourse to ordinaryprocedure. Per Order XXIII Rule 3B, in order to compromise in arepresentative suit, it is necessary to obtain the leave of the Court. Beforegrant of leave to compromise, the Court needs to give notice in such amanner as it may think fit, to such persons as may appear to it to beDinterested in the suit.

It is pertinent to note that it is not clear whether the suit in O.S.No. 10/1974 was filed under Order I Rule 8 or not. Even assuming thatwe accept the respondents’ contention that the said suit was not strictlyfiled under Order I Rule 8, it would be regarded in the nature of aErepresentative suit for the purposes of Explanation (c) to Order XXIIIRule 3B. Explanation (c) provides that the term ‘representative suit’includes suits where the compromise decree passed therein becomesbinding on persons not named as parties to the suit. In O.S. No. 10/1974,Pattakal Koyammakoya was representing the respondent family’sFinterests in his capacity as Karanavan of the family. Hence thecompromise decree, if upheld, would prejudice the family’s customaryright to the office of mutawalli and the terms thereof would becomefinal and binding by virtue of Section 96(3), CPC. Thus, it is clear thatthe two conditions mentioned supra in relation to representative suitshave to be complied with if the compromise decree passed in O.S. No.G10/1974 is to be held valid.

The Tribunal as well as the High Court, on considering thecompromise decree passed and the records thereof, have on factsconcluded that the parties to the decree did not obtain leave of the courtand did not give notice to other persons who were interested in the suit, H

i.e., members of the Pattakal family, as required under Order XXIIIRule 3B. The appellants before this court have also not disputed that thecompromise decree was without leave of the court and without notice tointerested family members. As is evident from the foregoing discussion,such violations of Order XXII Rule 3-B cannot be said to be merelyprocedural, and go to the root of the matter since they deprive the affectedparties of the chance to question the terms of the compromise that theyare going to be bound by. Since both the conditions required under OrderXXIII Rule 3B were not complied with, the compromise decree wasvoid.

Further, we find that in addition to the above procedural violation,the compromise decree is also illegal insofar as it fails to comply withSection 60 of the Wakf Act, 1954, which provides that no suit in anyCourt by or against the mutawalli of a wakf relating to the rights of themutawalli 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 takentherein are to be subsequently intimated to the Wakf Board. Hence,we find ourselves in agreement with the findings of the lower Courtsthat the compromise decree was illegal and void.

Moreover, as rightly argued by learned counsel for the respondentsby placing reliance on Sardar Bibi (supra), which has also beenfavourably cited by Mulla (21[st] edn., 2017) on page 14, the abrogationof custom cannot be inferred from a mere individual declaration (i.e. theadmissions made by Pattakal Koyammakoya Thangal in the decree) inthe absence of any continuous course of conduct by the family to thateffect. The respondents’ family was not given notice before passing ofthe compromise decree and did not have any say with respect to theterms framed therein, and hence it cannot be said that the decree isbinding against them.

33. Thus, we are of the view that the appellants have not beenable to establish that there was a breach in the respondents’ customaryright of holding the post of mutawalli due to the formation of the committeein 1966 which existed till 1972 or due to the compromise decree which isdeclared as void.

34. Learned counsel for the appellants argued that even if it isproved that the respondents have a customary right, such custom violates A

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Apublic policy and is unreasonable, as one family should not be allowed tomonopolize the management of a public waqf. We are unable to agreewith this contention. There cannot be any dispute that the mutawalli hasno right in the property belonging to the waqf, and is merely asuperintendent or manager. Hence, the respondents’ right to office ofmutawalli does not divest the waqf of its public character. Moreover,Bthe exercise of any customary right to succession will be necessarilysubject to the provisions of the Waqf Act, 1995, which provides broadpowers to the Waqf Board for supervising the administration of a waqf.For example, Section 64 of the Waqf Act, 1995 provides for the removalof the mutawalli, and Section 69 of the Act deals with the power of theCBoard to frame a scheme for the administration of the waqf under certaincontingencies.

We also find it relevant to refer to the following observations ofthe Bombay High Court in In re Mahomed Haji Haroon (supra), whichwere made in the context of a waqf created for charitable purposes:

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“In accordance with generally prevalent Muslim sentiments,—and the law of waqifs supports these sentiments,—members ofthe family of the waqif ought to be given preference in appointmentas trustees…I do not, therefore (in spite of the deference I shouldlike to show to the Advocate General’s point that unless outsidersEare appointed as trustees the trust may become entirely a familyaffair) consider that there must necessarily be any outsideramongst the trustees. On the contrary I think the Muslim lawdoes not dread the management of waqifs being retained in thefamily of the waqif. It disapproves of the introduction of an outsiderin the administration at least of such a trust as is before me, unlessFthe members of the waqif’s family show their unfitness to betrustees. I take this opportunity, however, of observing that thoughdescendants of the waqif are favoured by the Court, whenappointing a mutawalli, this does not mean that they have ahereditary right to be mutawallis, still less that their descent willGprotect them from removal if there is any mismanagement. Thetrustees that are now being appointed ought to be particularlycareful in the administration of the trust. They should utilize thefunds for such purposes and in such a manner that there may notbe the least ground for any aspersion being cast against them. Nosuspicions should be allowed to arise that the funds are not being G

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utilized for the most suitable and proper objects. Every portion ofthe funds should be manifestly put to uses entirely in accordancewith the principles of Islam, which is a progressive and enlightenedreligion.”

As noted in the above decision, even if the mutawalli belongs tothe family of the waqif, he is not immune from removal in the case ofmismanagement of the waqf, and must administer the waqf in accordancewith the principles of common prudence and probity. Having regard tothe above principle, and to the provisions of the Waqf Act which takecare of contingencies in case of mismanagement, etc., it cannot be saidthat the respondents’ exercise of customary right to the office of mutawalliis unreasonable orviolates public policy.

35. In light of the foregoing discussion, we have no hesitation toreach the conclusion that the respondents have been able to establish acustomary right to the office of mutawalli of the Jumah mosque, underthe facts and circumstances of this case, which is not unreasonable oropposed to public policy. The respondents have through clear andunambiguous evidence shown a practice of continuous and invariabledevolution of the office of mutawalli through successive appointmentsfrom within the Patakkal family, beginning with the institution of themosque itself. Adopting the principle enunciated in Phatmabi andKalandar Sahib (supra), we find that this evidence is sufficient to drawa presumption that such hereditary devolution was as per the intentionof Ubaidulla, the original wakif, therefore also satisfying the specificrequirements mentioned supra for proving a custom of hereditarysuccession to the office of mutawalli.

36. Therefore, the appeals are dismissed and the impugnedjudgment and order is confirmed.

Divya Pandey

Appeals dismissed.

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