# ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA & ANR v. PATTAKAL CHERIYAKOYA & ORS

- **Citation:** [2019] 10 S.C.R. 961
- **Court:** Supreme Court of India
- **Decided:** 2019-08-01
- **Case number:** Civil Appeal No.9586 of 2010
- **Bench:** Mohan M. Shantanagoudar, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aliyathammuda-beethathebiyyappura-pookoya-anr-v-pattakal-cheriyakoya-ors-33008
- **Pages:** 35

## Headnote

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 Jumah
mosque situated in Lakshadweep - Respondents, seniormost
members of the Pattakal family, claim to be the descendants of one
Saint Ubaidulla, stated to have built the mosque and was its first
mutawalli - They claim that by customary tradition, the office of the
mutawalli of the mosque is vested with their family- Appellants,
representatives of residents of the Andrott Island claim that the
mosque was built by the inhabitants of the island and the respondents
never had customary right to the office of mutawalli, and the right
to select the mutawalli should vest with the people of the local area
- Respondents filed suit before the Waqf Tribunal for declaration
that the office of mutawalli of the mosque is vested with their family
- Suit decreed - High Court on appeal remanded it back to the
Tribunal - Suit dismissed - High Court decreed that the office of
mutawalli was vested with the respondents by custom -Held: It cannot
be said that the High Court exceeded the scope of its revisional
jurisdiction - Historical materials corroborate that Ubaidulla was
the first mutawalli of the mosque and that after his demise, his
descendants, i.e. the Pattakal family, were holding the office of Kazi
and managing the mosque as mutawallis turn by turn - Appellants
have not produced any contrary historical opinion- Appellants
could not establish that there was breach in the respondents'
customary right of holding the post of mutawalli due to the formation
of the committee in 1966 which existed till 1972 or due to the
compromise decree (passed in suit between the appellants' and
respondents' predecessors, as per which the mosque was to be
managed by the committee elected by local residents) which is
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declared as void - Muslim law does not recognize an inherent right
of succession to the office of mutawalli - However, such a right
may be shown on the basis of certain exceptions, which includes
the creation of a custom to that effect - Respondents have been
able to establish customary right to the office of mutawalli of the
Jumah mosque, which is not unreasonable or opposed to public
policy - Waqf Act, 1995 - ss. 3(i), 64, 69(2) and 83(9) - Evidence
Act, 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 High
Court against order of the Waqf Tribunal - Scope of - Discussed.
Evidence Act, 1872 - ss.35, 45 and 81 - Gazette and contents
thereof - Appreciation of - Held: Gazette is an official record
evidencing public affairs, and its genuineness is presumed u/s.81Moreover, u/s.35, an entry made by the Gazetteer in discharge of
his official duty is a relevant fact - Any fact recorded by the
Gazetteer may also be considered as expert opinion u/s.45 -
Therefore, the contents of the Gazette can be taken into account to
discover the historical materials contained therein, which the Court
may consider in conjunction with other evidence and circumstances
in adjudicating a dispute, even if it may not be conclusive evidence
of the fact-in-issue.
Code of Civil Procedure, 1908 - Or. I, r.8 and Or. XXIII, r.3B
- Representative suit - Compromise decree - When void - Discussed.
Customary Law - Claim as to a customary right to succeed to
the office of mutawalli - Proof of - Held: A person claiming a
customary right to succeed to the office of mutawalli would have to
show that the waqif (founder of the waqf) intended for the office to
devolve through a practice of hereditary succession - In the absence
of any express directions in the waqfnama to this effect, the claimant
would have to show that such practice has been in existence
throughout the history of the trust, and not

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ALIYATHAMMUDA BEETHATHEBIYYAPPURA
POOKOYA & 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 Jumah
mosque situated in Lakshadweep - Respondents, seniormost
members of the Pattakal family, claim to be the descendants of one
Saint Ubaidulla, stated to have built the mosque and was its first
mutawalli - They claim that by customary tradition, the office of the
mutawalli of the mosque is vested with their family- Appellants,
representatives of residents of the Andrott Island claim that the
mosque was built by the inhabitants of the island and the respondents
never had customary right to the office of mutawalli, and the right
to select the mutawalli should vest with the people of the local area
- Respondents filed suit before the Waqf Tribunal for declaration
that the office of mutawalli of the mosque is vested with their family
- Suit decreed - High Court on appeal remanded it back to the
Tribunal - Suit dismissed - High Court decreed that the office of
mutawalli was vested with the respondents by custom -Held: It cannot
be said that the High Court exceeded the scope of its revisional
jurisdiction - Historical materials corroborate that Ubaidulla was
the first mutawalli of the mosque and that after his demise, his
descendants, i.e. the Pattakal family, were holding the office of Kazi
and managing the mosque as mutawallis turn by turn - Appellants
have not produced any contrary historical opinion- Appellants
could not establish that there was breach in the respondents'
customary right of holding the post of mutawalli due to the formation
of the committee in 1966 which existed till 1972 or due to the
compromise decree (passed in suit between the appellants' and
respondents' predecessors, as per which the mosque was to be
managed by the committee elected by local residents) which is
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declared as void - Muslim law does not recognize an inherent right
of succession to the office of mutawalli - However, such a right
may be shown on the basis of certain exceptions, which includes
the creation of a custom to that effect - Respondents have been
able to establish customary right to the office of mutawalli of the
Jumah mosque, which is not unreasonable or opposed to public
policy - Waqf Act, 1995 - ss. 3(i), 64, 69(2) and 83(9) - Evidence
Act, 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 High
Court against order of the Waqf Tribunal - Scope of - Discussed.
Evidence Act, 1872 - ss.35, 45 and 81 - Gazette and contents
thereof - Appreciation of - Held: Gazette is an official record
evidencing public affairs, and its genuineness is presumed u/s.81Moreover, u/s.35, an entry made by the Gazetteer in discharge of
his official duty is a relevant fact - Any fact recorded by the
Gazetteer may also be considered as expert opinion u/s.45 -
Therefore, the contents of the Gazette can be taken into account to
discover the historical materials contained therein, which the Court
may consider in conjunction with other evidence and circumstances
in adjudicating a dispute, even if it may not be conclusive evidence
of the fact-in-issue.
Code of Civil Procedure, 1908 - Or. I, r.8 and Or. XXIII, r.3B
- Representative suit - Compromise decree - When void - Discussed.
Customary Law - Claim as to a customary right to succeed to
the office of mutawalli - Proof of - Held: A person claiming a
customary right to succeed to the office of mutawalli would have to
show that the waqif (founder of the waqf) intended for the office to
devolve through a practice of hereditary succession - In the absence
of any express directions in the waqfnama to this effect, the claimant
would have to show that such practice has been in existence
throughout the history of the trust, and not merely for a few
generations - Burden of proof would be higher with respect to a
public waqf, than a family trust - Muslim Law.
Dismissing the appeals, the Court
HELD: 1.1 Ordinarily, while revisional jurisdiction does not
entitle the High Court to interfere with all findings of fact recorded
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by lower Courts, the High Court may correct a finding of fact if it
has been arrived at without consideration of material evidence,
is based on misreading of evidence, is grossly erroneous such
that it would result in miscarriage of justice, or is otherwise not
according to law. The scope of such revisional jurisdiction is wider
when the High Court is vested with the power to examine the
legality or propriety of the lower Court's order under the statute
from which the revisional power arises. In such a situation, the
High Court may also examine the correctness of findings of fact,
and re-appraise the evidence (Ram Dass v. Ishwar Chander, (1988)
3 SCC 131). It is not disputed that Ubaidulla had come to Andrott
and converted the people of the island from Hinduism to Islam.
The High Court was rightly of the opinion the Tribunal need not
have probed further for positive proof after noting all the historical
facts proved. Thus, the High Court in the impugned judgment
has not entered into a rehearing or reassessment of the findings
of fact arrived at by the Wakf Tribunal. Rather, the Court has
rightly noted that the Tribunal did not apply the appropriate
standard of proof to be applied in a civil suit, i.e. the standard of
preponderance of probability. Therefore, it cannot be said that
the High Court exceeded the scope of its revisional jurisdiction
in any manner. [Paras 12, 13] [976-D-G; 977-C-D]
1.2 The Tribunal in its judgment specifically noted that the
partition deeds only relate to the division of properties within
the tharawad and do not deal with the right of management of the
mosque. The respondents themselves are claiming the office of
mutawalli as a customary right, not as a proprietary right. It has
even been admitted by counsel for the appellants during the
course of arguments that the same cannot be a proprietary right.
Hence, the partition deeds could not have made any provision
with respect to the office of mutawalli, and the non-mentioning of
this office in the partition deeds will not prejudice the claim of
the respondents to a customary right to succeed to this office.
[Para 14] [977-F-G]
1.3 Since this issue relates to a mosque constructed almost
1300-1400 years ago, it is impossible to find contemporary proof
of the construction of the same. The Gazetteer for the
Lakshadweep Islands, as recently as 1977, has recorded that
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Ubaidulla was the first musaliyar in Andrott and is buried in the
Andrott mosque. The Gazetteer, as well as the then Collector,
gave credence to this account in spite of inaccuracies relating to
the date of conversion of the inhabitants. The Gazette is an official
record evidencing public affairs, and its genuineness is presumed
under Section 81 of the Evidence Act, 1872. Moreover, under
Section 35 of the Evidence Act, an entry made by the Gazetteer
in discharge of his official duty is a relevant fact. Any fact recorded
by the Gazetteer may also be considered as expert opinion under
Section 45 of the Evidence Act. Therefore, the contents of the
Gazette can be taken into account to discover the historical
materials contained therein, which the Court may consider in
conjunction with other evidence and circumstances in adjudicating
a dispute, even if it may not be conclusive evidence of the factin-issue (Bala Shankar Mana Shankar Bhattjee v. Charity
Commissioner, Gujarat State, 1994 Suppl. (2) SCR 687). Such a
record cannot be challenged by the appellants merely on the
ground that it is not a recent publication. Moreover, irrespective
of the date of conversion of the island's inhabitants, had Ubaidulla
not had a significant connection to the mosque, there would have
been no reason for him to be buried there and for the tomb to be
venerated. Even if the book (Ex A37) is disregarded on the ground
that it was written by Respondent No. 2's relative (that too after
the suit was filed), other independent historical materials
corroborate that Ubaidulla was the first mutawalli of the mosque,
that he married a female convert and established the Pattakal
tharawad, and that after his demise, his descendants, i.e. the
Pattakal family, were holding the office of Kazi and managing the
mosque as mutawallis turn by turn. Moreover, as the High Court
has rightly observed, these materials refer to the history of the
island, its administration, the local culture and economy, etc., all
of which constitute historical facts, and these materials qualify as
historical literature. Hence, the appellants' contention that these
materials are legendary or mythological in nature, disagreed with.
The appellants, on the other hand, have not produced any contrary
historical opinion that states that Ubaidulla was not the first
mutawalli and that his descendants did not continue to hold the
office of mutawalli, or any historical proof to show that the mosque
was being managed by local residents or by a committee. Thus,
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no reason to interfere with the finding by the High Court that the
respondents have held the office of mutawalli of the mosque since
its establishment. [Para 15] [978-F-H; 979-A-G]
1.4 It is not under dispute that this office can be customary.
This is also evident from the definition of 'mutawalli' in Section
3(i) of the Waqf Act, 1995, which includes a person who is
mutawalli by virtue of any custom. Muslim law does not recognize
an inherent right of succession to the office of mutawalli. However,
various scholars on Muslim law have opined that such a right
may be shown on the basis of certain exceptions, which includes
the creation of a custom to that effect. a claim of hereditary
succession may be accepted if it is founded in a direction to that
effect by the waqif (i.e. the founder of the waqf). Such a direction
may be presumed from a practice of successive appointments
made from amongst the waqif's family members. Even the
decisions which have held that there is no right to hereditary
succession to the office of mutawalli under Muslim law do not
support the appellants' contention that there cannot be an
exception by way of custom to the general rule affirmed in those
decisions. The Waqf Act, 1995 itself acknowledges that a waqf
may have a hereditary mutawalli. This is evident from the proviso
to Section 69(2), dealing with the power of the Waqf Board to
frame a scheme for the administration of a waqf. A person claiming
a customary right to succeed to the office of mutawalli would have
to show that the waqif intended for the office to devolve through
a practice of hereditary succession. In the absence of any express
directions in the waqfnama to this effect, the claimant would have
to show that such practice has been in existence throughout the
history of the trust, and not merely for a few generations, such
that the waqif's intention that the office should be hereditary can
be presumed. The burden of proof would be higher with respect
to a public waqf, such as the suit waqf in the instant case, than a
family trust. A custom in order to be legal and binding must be
certain, reasonable and acted upon in practice for a long period
with such invariability and continuity that it has become the
established governing rule in a community by common consent.
It is incumbent upon the party relying on the custom to plead and
prove it. While no person can claim the office of mutawalli merely
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by virtue of being an heir of the waqif or the original mutawalli, if
they can show through a long-established usage or custom that
the founder intended that the office should devolve through
hereditary succession, such usage or custom should be followed.
Additionally, the practice would have to comply with the
requirements which are generally applicable while proving a
custom, i.e. it must be specifically pleaded, and should be ancient,
certain, invariable, not opposed to public policy, and must be
proved through clear and unambiguous evidence. The
respondents in paragraph 2 of their plaint in O.S. No. 1/1998 have
specifically pleaded that the office of the mutawalli is vested in
the Pattakal family 'by virtue of immemorial custom and usage.' It
can be inferred that even prior to the enforcement of the Kazis
Act, the government appointed a Kazi for Andrott Island, for a
limited duration only, on the request of the inhabitants. Therefore,
such appointment would not prejudice the respondents' customary
right to manage the Jumah mosque. In any event, a singular
artificial break or gap in the exercise of a customary right, that
too by executive orders, would not lead to abrogation of the
customary right itself, unless such break constitutes a recurring
infringement or leads to conferment of title in the opposite party.
The appellants have not been able to show that apart from the
instances mentioned in Ex B8 or B9, anybody else was functioning
as the Kazi-cum-mutawalli of the mosque since ages prior to the
filing of the suit, so as to constitute a recurring infringement or
to confer title upon a third party. On the other hand, the
respondents have produced considerable documentary evidence
to show that members of the Pattakal family were functioning as
mutawalli since the establishment of the mosque. Thus, the
appellants' argument in this regard fails.[Paras 16-26, 29]
[979-H; 980-A-B; 982-B, C, G-H; 983-C, E-H; 984-E-G; 985-A;
988-G-H; 989-B-C]
1.5 The committee was only in existence from 1966 to
1972 and that too only to advise the mutawalli in relation to the
repair and maintenance of the mosque. Entries made in and
around 1967 regarding the Jumah mosque in the List of Wakfs
and the Register of Wakfs under the Wakf Act, 1954, evidence
that the office of mutawalli was customarily vested in the
respondents, and not in the committee, during the period to which
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the entries pertain. Since the List of Wakfs (Ex A3) relied upon
by the respondents is a Gazette notification, the entry contained
therein showing that the office of mutawalli was held by the
Patakkal family will constitute a relevant fact under Sections 35,
45 and 81 of the Evidence Act. Both the Tribunal and the High
Court have concurrently found that it is an admitted fact that an
enquiry was made by the Waqf Board pertaining to the Jumah
mosque in 1967. Appellant No.1 had also deposed before the
Tribunal about having participated in this enquiry, after which
the List was published. Thereafter, no complaint was made against
the entry in the List. Hence, the appellants cannot at this stage
claim that the entry made is incorrect. The Register of Wakfs is
prepared by the Wakf Commissioner, an official appointed by the
State Government, hence an entry made therein is an entry made
by a public official in performance of his official duty and is
considered a relevant fact under Section 35 of the Evidence Act.
Hence the entry made in the Register of Wakfs (Ex A4) showing
Pattakal Koyammakoya as the mutawalli of the Jumah mosque is
a relevant fact for the purpose of deciding this dispute. Under
Order I Rule 8, CPC, which pertains to representative suits, a
person may sue or defend on behalf of others and for the benefit
of others having the same interest, with the permission of the
Court. The object of Order I Rule 8 is to facilitate the decision of
questions in which a large number of persons are interested
without recourse to ordinary procedure. Per Order XXIII Rule
3B, in order to compromise in a representative suit, it is necessary
to obtain the leave of the Court. Before grant of leave to
compromise, the Court needs to give notice in such a manner as
it may think fit, to such persons as may appear to it to be
interested in the suit. Even assuming that the respondents'
contention is accepted that the said suit was not strictly filed under
Order I Rule 8, it would be regarded in the nature of a
representative suit for the purposes of Explanation (c) to Order
XXIII Rule 3B. Explanation (c) provides that the term
'representative suit' includes suits where the compromise decree
passed therein becomes binding on persons not named as parties
to the suit. In O.S. No.10/1974, Pattakal Koyammakoya was
representing the respondent family's interests in his capacity as
Karanavan of the family. The appellants before this court have
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also not disputed that the compromise decree was without leave
of the court and without notice to interested family members.
Such violations of Order XXII Rule 3-B cannot be said to be
merely procedural, and go to the root of the matter since they
deprive the affected parties of the chance to question the terms
of the compromise that they are going to be bound by. Since both
the conditions required under Order XXIII Rule 3B were not
complied with, the compromise decree was void. Further, in
addition to the above procedural violation, the compromise decree
is also illegal insofar as it fails to comply with Section 60 of the
Wakf Act, 1954, which provides that no suit in any Court by or
against the mutawalli of a wakf relating to the rights of the
mutawalli shall be compromised without the sanction of the Wakf
Board. Rather than obtaining the sanction of the Wakf Board prior
to the decree, the compromise decree mentions in paragraph 7
that the decisions taken therein are to be subsequently intimated
to the Wakf Board. The compromise decree was illegal and void.
The abrogation of custom cannot be inferred from a mere
individual declaration (i.e. the admissions made by Pattakal
Koyammakoya Thangal in the decree) in the absence of any
continuous course of conduct by the family to that effect. The
respondents' family was not given notice before passing of the
compromise decree and did not have any say with respect to the
terms framed therein, and hence it cannot be said that the decree
is binding against them. Thus, the appellants have not been able
to establish that there was a breach in the respondents' customary
right of holding the post of mutawalli due to the formation of the
committee in 1966 which existed till 1972 or due to the
compromise decree which is declared as void. [Paras 30, 32 and
33] [989-G-H; 90-C, D-F; 992-C-F; 993-A-D]
1.6 There cannot be any dispute that the mutawalli has no
right in the property belonging to the waqf, and is merely a
superintendent or manager. Hence, the respondents' right to
office of mutawalli does not divest the waqf of its public character.
Moreover, the exercise of any customary right to succession will
be necessarily subject to the provisions of the Waqf Act, 1995,
which provides broad powers to the Waqf Board for supervising
the administration of a waqf. Even if the mutawalli belongs to the
family of the waqif, he is not immune from removal in the case of
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mismanagement of the waqf, and must administer the waqf in
accordance with the principles of common prudence and probity.
It cannot be said that the respondents' exercise of customary
right to the office of mutawalli is unreasonable or violates public
policy. The respondents have been able to establish a customary
right to the office of mutawalli of the Jumah mosque, under the
facts and circumstances of this case, which is not unreasonable
or opposed to public policy. The respondents have through clear
and unambiguous evidence shown a practice of continuous and
invariable devolution of the office of mutawalli through successive
appointments from within the Patakkal family, beginning with the
institution of the mosque itself. This evidence is sufficient to draw
a presumption that such hereditary devolution was as per the
intention of Ubaidulla, the original wakif, therefore also satisfying
the specific requirements for proving a custom of hereditary
succession to the office of mutawalli. [Paras 34, 35] [994-A-B;
995-B-E]
Hindustan Petroleum Corporation Ltd v. Dilbahar Singh
(2014) 9 SCC 78 - followed.
Bala Shankar Mana Shankar Bhattjee v. Charity
Commissioner, Gujarat State [1994] 2 Suppl. SCR 687
- relied on.
Sayed Ahamedkoya Thangal v. Administrator, (1997) 2
KLJ 362; Mt. Sardar Bibi v. Haq Nawaz Khan, AIR
1934 Lahore 371; Ram Dass v. Ishwar Chander (1988)
3 SCC 131 : [1988] 1 Suppl. SCR 239; Atimannessa
Bibi v. Abdul Sobhan, (1916) 43 Cal 467 ; In Re
Mahomed Haji Haroon Kadwani ILR (1935) 59 Bom
424; Bebee Syedun v. Syed Allah Ahmad W.R. 1864,
327 (Calcutta High Court); Shah Gulam Rahumtulla
Sahib v. Mahommed Akbar Sahib 8 Mad. H.C. Rep.
63 (1875); Phatmabi v. Haji A. Musa Sahib (1915) 38
Mad. 491; Kalandar Batcha Sahib v. Jailani Sahib AIR
1930 Mad 554 ; H.H. Mir Abdul Hussein Khan v. Bibi
Sona Dero AIR 1917 PC 181; Ramalakshmi Ammal v.
Sivanantha Perumal Sethurayar (1871-72) 14 Moo IA
570 ; Muniandi Kone v. Sri Ramanatha Sethupathi AIR
1982 Madras 170 ; K.A Srinivasa Ayyangar v. S.
Ramanujachariar 1941 (1) M.L.J 322 - referred to.
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S.A Khader in Law of Wakfs (1999, Page 33); Mulla in
Principles of Mahomedan Law, 21st Edn., 2017,
Prof. Iqbal Ali Khan Edn.; Fyzee's Outlines of
Muhammedan Law (5th Edn., 2008, Prof. Tahir
Mahmood Ed., p. 49) - referred to.
 Case Law Reference
(1997) 2 KLJ 362
referred to
Para 8
AIR 1934 Lahore 371
referred to
Para 9
(2014) 9 SCC 78
followed
Para 12
[1988] 1 Suppl. SCR 239
referred to
Para 12
[1994] 2 Suppl. SCR 687
relied on
Para 15
(1916) 43 Cal 467
referred to
Para 17
(1935) 59 Bom 424
referred to
Para 17
W.R. 1864, 327
referred to
Para 17
8 Mad. H.C. Rep. 63 (1875) referred to
Para 19
(1915) 38 Mad. 491
referred to
Para 19
AIR 1930 Mad 554
referred to
Para 19
AIR 1917 PC 181
referred to
Para 23
(1871-72) 14 Moo IA 570
referred to
Para 23
AIR 1982 Madras 170
referred to
Para 29
1941 (1) M.L.J 322
referred to
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No.9586 of
2010
From the Judgment and Order dated 18.12.2007 of the High Court
of Kerala at Ernakulam in C.R.P. No. 460 of 2006 (A)
With
Civil Appeal Nos. 9588, 9587 of 2010
Shekhar Naphade, Sr.Adv., Vivek Chib, Ms. Pracheta Kar,
Kaushal Sharma, Neeraj Shekhar, A. Raghunath, Sayyid Nilamuddin,
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Sayyid Saifudheen, S. Lakshmiu Iyer, Abhikalp Pratap Singh, Advs. for
the 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 Appeal
No. 9586 of 2010 for deleting the names of appellant Nos. 3 and 4 and
respondent No. 7 from the array of parties is allowed.
2. These appeals arise out of the judgment dated 18.12.2007 of
the High Court of Kerala at Ernakulam in C.R.P. Nos. 460/2006 and
462/2006. 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 that
O.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 the
Andrott Jumah mosque situated in Lakshadweep. The mosque is
presently a public waqf registered with the Lakshadweep Waqf Board.
The respondents herein are the seniormost male members of the different
thavazhies (branches of descendants through the female line) of the
Pattakal family. They claim to be the descendants of one Saint Ubaidulla,
who is stated to have built the Andrott Jumah mosque, and who was its
first mutawalli. Thus, they claim that by customary tradition, the office
of the mutawalli of the mosque is vested with their family. It is their
case that the members of the family choose the mutawalli from amongst
themselves, and Respondent No. 1 is functioning as the present mutawalli
of the mosque.
The appellants in C.A. No. 9586/2010 are members of the
Aliyathammuda 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 of
Andrott Island, Lakshadweep. The common contention of the appellants
in these three appeals is that the Jumah mosque was built by the
inhabitants of Andrott island and was first administered by the 'Amin
 ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v.
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and Karanavan' system (i.e. by the executive officer assisted by the
nominated heads of local families), and subsequently by a committee of
elected public representatives from 1966-1972. The president of such
committee from 1966-1972 was the respondents' predecessor Pattakal
Koyammakoya Thangal, who was removed from presidency in 1974
after a dispute arose. It may be noted that while the appellants in C.A.
No. 9586/2010 claim that the system of management by an elected
committee continued after the dispute, the appellants in connected appeals
C.A. Nos. 9587/2010 and 9588/2010 claim that due to this dispute,
management of the mosque broke down. However, their common claim
is that the respondents never had a customary right to the office of
mutawalli, and the right to select the mutawalli should vest with the
people of the local area.
4. It is also their common claim that a compromise decree was
passed on 16.02.1981 in O.S. No. 10/1974 between the appellants'
predecessors and Pattakal Koyammakoya Thangal, as per which the
mosque was to be managed by the committee elected by local residents.
The appellants' contention is that even if there was any customary right
vested with the respondents, it was breached by the formation of the
committee and passing of the compromise decree. However,
subsequently, the respondents filed civil suit O.S. No. 1/1998 before the
Waqf Tribunal, Kavarathi praying for a declaration that the office of
mutawalli of the Jumah mosque is vested with the Pattakal family.
Initially, the suit was decreed in their favour, but the High Court on appeal
remanded it back to the Waqf Tribunal for fresh disposal.
5. After remand, the Waqf Tribunal by its judgment dated
20.05.2006 held that there was no evidence to show that the mosque
was being managed by an elected committee. Though the Tribunal
declared that the compromise deed in O.S. No. 10/1974 was void, as no
application was made for leave of the Court, and the respondents' family
was not given notice as required under Order XXIII Rule 3B of the Civil
Procedure Code (for short "CPC"), it found that the respondents, on
their part, had not produced any positive evidence to show that Ubaidulla
was the first mutawalli of the Jumah mosque,and that the customary
right to the office of mutawalli was vested with their family i.e. Pattakal
family. Rather, the right to manage the mosque was vested with the
local residents. Hence, it dismissed the suit and directed the parties along
with the Waqf Board to draft a scheme for the management of the
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mosque. Against this judgment, the respondents filed a revision petition
before the High Court.
6. The High Court in the impugned judgment found that there was
no evidence to show that anyone apart from the respondents had
functioned as mutawalli of the mosque at any point of time. It held that
the committee in existence from 1966-1972 was only a committee for
overseeing the repairs and maintenance of the mosque, and not for
management thereof, and agreed with the Tribunal's reasoning with
respect to the compromise decree being void. On this basis, it decreed
that 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 appellants
have admitted that the office of mutawalli can be a customary office.
However, their contention is that such an office can be heritable by
custom only if it is specifically pleaded and proved, which was not done
by the respondents in this case.
8. Learned senior counsel for the appellants, Shri Shekhar
Naphade, emphatically argued before us that the High Court has exceeded
the scope of its revisional jurisdiction under Section 83(9) of the Waqf
Act, 1995, and acted like a first appellate Court by re-appreciating the
evidence on record; and that the High Court has decreed the respondents'
customary right by placing reliance upon legends, mythologies, fiction
and outdated materials, which do not specifically state that Ubaidulla
was the first mutawalli of the Jumah mosque.
That the book 'Futhuhathul Jesair' (Ex A37) should not have
been relied upon, as it was published after the filing of the suit, and
Respondent No. 2 in his deposition in O.S. No. 1/1998 admitted that it
was written by his uncle's brother-in-law. According to the appellants, it
was purposefully written to support the respondents' case. Reliance was
also placed upon Ex B8 and ExB9 to show that the Pattakal family
was not managing the mosque in 1921 and 1923.
That in the Lakshadweep islands, the office of Kazi and mutawalli
are one and the same, and the Kerala High Court in Sayed Ahamedkoya
Thangal v. Administrator, (1997) 2 KLJ 362, had held that the
respondents' family i.e. the Pattakals did not have a hereditary right to
the office of Kazi and therefore could not challenge the appointment of
a Kazi under the Kazis Act, 1880. This order having attained finality, it
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was now not open to the respondents to argue in favour of a hereditary
right to the office of mutawalli, when such right has been denied for the
office of Kazi; and that the respondents themselves admitted in the plaint
in O.S. No. 1/1998 that the office of mutawalli and Kazi is one and the
same, 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 mention
which branch of the family would continue to hold the office of mutawalli,
and the same belies the respondents' case that it was a hereditary right
within the family.
That the compromise decree is binding against the respondents
since the irregularity therein found by the Tribunal was only procedural,
and that the burden was on the respondents to show that the decree was
void, since there is a presumption under Section 114(e) of the Indian
Evidence Act, 1872 that judicial acts have been regularly performed.
Lastly, learned counsel argued that the material on record clearly
shows that the public of Andrott Island has always had a role in the
management of the mosque, which is registered as a public waqf, and
even 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 waqf
vest in one family.
9. Per contra, learned counsel for the respondents has drawn
attention to the Tribunal's finding that the documentary evidence showed
that it was the respondents' family which was managing the mosque
property. On the other hand, there was no documentary evidence to
show that the committee of public representatives formed in 1966 was
managing the mosque.
He reiterated the argument made before the Tribunal pertaining
to Sections 4 and 5 of the Wakf Act, 1954, under which a List of Wakfs
is published by the Wakf Board after due inquiry by the Survey
Commissioner. Before the Tribunal, the respondents had produced ExA3,
the Gazette notification issued by the Lakshadweep Wakf Board
containing the List of Wakfs published under Section 5, which showed
that the office of mutawalli of the Jumah mosque was held by "members
of pattakal (family) under the supervision of Amins and
Karanavans". Learned counsel also referred to Ex A4 and Ex A5, the
certified copy of the entry in the statutory Register of Wakfs, and the
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receipt for wakf registration dated 5.3.1967 respectively, both of which
show the name of the respondents' predecessor Pattakal Koyammakoya
as mutawalli for the Jumah mosque.
Learned counsel relied upon these documents to contradict the
claim that the committee constituted in 1966 was managing the mosque
at that time. Further, since these documents were not challenged by the
appellants before the institution of the suit, they could not now claim that
the respondents were not holding the office of mutawalli.
The respondents relied upon the judgment of the Full Bench of
the Lahore High Court in Mt. Sardar Bibi v. Haq Nawaz Khan,AIR
1934 Lahore 371, wherein it was held that a long established custom
practiced by a family or community cannot be abrogated by a mere
individual declaration to that effect, but such abrogation has to be inferred
from the course of conduct of the family or community over an extended
period of time. Hence, even if the appellants' arguments with respect to
the committee or the compromise decree were accepted, the respondents'
customary right to office of mutawalli would not be abrogated simply
because Pattakkal Koyammakoya Thangal took up of the presidency of
the committee or entered into the compromise dated 16.02.1981 as
Karanavan of the Pattakal family.
Learned counsel for the respondents finally stressed that both the
Courts have rightly held that the compromise decree dated 16.02.1981
was not only illegal but also void; that merely because of certain small
gaps in the 1920s in which the Pattakal family did not hold the office of
mutawalli, the customary office held by the family could not be held to
be discontinued; and that mere artificial breaks, that too for small periods
and only on a couple of occasions, could not, in law, break the continuity
in 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 revisional
jurisdiction; and
Secondly, whether the respondents have pleaded and proved that
they have a customary right to the office of mutawalli in the Jumah
mosque.
11.Regarding the appellants' argument on the scope of the
revisional jurisdiction of the High Court against an order of the Waqf
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Tribunal, it is pertinent to note Section 83(9) of the Waqf Act, 1995
which provides that:
"No appeal shall lie against any decision or order whether interim
or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the
application of the Board or any person aggrieved, call for and
examine the records relating to any dispute, question or other matter
which has been determined by the Tribunal for the purpose of
satisfying itself as to the correctness, legality or propriety of such
determination and may confirm, reverse or modify such
determination or pass such other order as it may think fit."
 (emphasis supplied)
12. It is well settled that ordinarily, while revisional jurisdiction
does not entitle the High Court to interfere with all findings of fact
recorded by lower Courts, the High Court may correct a finding of fact
if it has been arrived at without consideration of material evidence, is
based on misreading of evidence, is grossly erroneous such that it would
result in miscarriage of justice, or is otherwise not according to law (see
the decision of the Constitution Bench of this Court in Hindustan
Petroleum Corporation Ltd v. Dilbahar Singh, (2014) 9 SCC 78).
Importantly, the scope of such revisional jurisdiction is wider when the
High Court is vested with the power to examine the legality or propriety
of the lower Court's order under the statute from which the revisional
power arises. In such a situation, the High Court may also examine the
correctness of findings of fact, and re-appraise the evidence (see Ram
Dass v. Ishwar Chander, (1988) 3 SCC 131). It is in this perspective
that the argument of the appellants must be considered.
13. As rightly noted by the Tribunal, it is not disputed that Ubaidulla
had come to Andrott and converted the people of the island from Hinduism
to Islam. The Tribunal also observed that the respondents/plaintiffs were
Ubaidulla's descendants "by all probabilities", keeping in mind the
historical materials produced. It was further observed that historians
were of the unanimous opinion that Ubaidulla was the first Kazi/mutawalli
of the mosque and that members of his family had held the office of
Kazi in succession. However, in spite of these observations, the Tribunal
did not go on to render a finding to the effect that the respondents had
been holding the post of mutawalli in succession. Instead, it concluded
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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, and
there was no positive evidence that he and his descendants were
mutawallis of the Jumah mosque.
The High Court noted that the findings of the Tribunal contradicted
its earlier observations, and held that since the mosque was constructed
as long ago as in the seventh century, no evidence other than the historical
material on record could be obtained to show, that in all probability,
Ubaidulla had indeed constructed the mosque. There could not be specific
or direct evidence of the donation of land for constructing the mosque,
or of the construction of mosque itself, and so on. The Court was rightly
of the opinion the Tribunal need not have probed further for positive
proof after noting all the historical facts proved.
Thus, it is evident that the High Court in the impugned judgement
has not entered into a rehearing or reassessment of the findings of fact
arrived at by the Wakf Tribunal. Rather, the Court has rightly noted that
the Tribunal did not apply the appropriate standard of proof to be applied
in a civil suit, i.e. the standard of preponderance of probability.
Therefore, it cannot be said that the High Court exceeded the
scope of its revisional jurisdiction in any manner.
14. To consider the appellants' argument that the Pattakal family
did not have a customary right to the office of mutawalli of the Jumah
mosque, we may first address the minor argument raised by the appellants
with respect to the respondents' partition deeds. The Tribunal in its
judgment has specifically noted that the partition deeds only relate to the
division of properties within the tharawad and do not deal with the right
of management of the mosque.