2019 Supreme(SC) 806

SUPREME COURT OF INDIA
MOHAN M. SHANTANAGOUDAR, AJAY RASTOGI, JJ.
Aliyathammuda Beethathebiyyappura Pookoya & Anr. – Appellants
Versus
Pattakal Cheriyakoya & ors. – Respondents
Civil Appeal Nos. 9586 to 9588 of 2010
Decided on : 01-08-2019

IMPORTANT POINTS
(1) Scope of revisional jurisdiction is wider when High Court is vested with power to examine legality or propriety of lower Court’s order under statute from which revisional power arises.
(2) Muslim law does not recognize an inherent right of succession to office of Mutawalli.
(3) Even if Mutawalli belongs to family of Waqif, he is not immune from removal in case of mismanagement of Waqf.
(4) A singular artificial break or gap in exercise of a customary right, that too by executive orders, would not lead to abrogation of customary right itself.

Headnote:

(A) Waqf Act, 1995 – Section 83(9) – Scope of revisional jurisdiction of High Court against order of Waqf Tribunal – Ordinarily, while revisional jurisdiction does not entitle High Court to interfere with all findings of fact recorded by lower Courts, 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 – Scope of such revisional jurisdiction is wider when High Court is vested with power to examine legality or propriety of lower Court’s order under statute from which revisional power arises – In such a situation, High Court may also examine correctness of findings of fact and reappraise evidence. (Para 12)

       (B) Mohammedan Law – Succession – Muslim law does not recognize an inherent right of succession to office of Mutawalli – Hereditary succession is extremely unlikely in offices in Mohammedan religious endowments – However, claim of hereditary succession may be accepted if it is founded in a direction to that effect by Waqif (Founder of Waqf) – Such a direction may be presumed from a practice of successive appointments made from amongst Waqif’s family members – Waqf Act, 1995 itself acknowledges that a Waqf may have a hereditary Mutawalli. (Paras 17 and 19)

       (C) Waqf Act, 1995 – Section 69(2), Proviso – Hereditary succession to office of Mutawalli – No person can claim office of Mutawalli merely by virtue of being an heir of Waqif or original Mutawalli, if they can show through a long established usage or custom that founder intended that office should devolve through hereditary succession, such usage or custom should be followed – Additionally, practice would have to comply with requirements which are generally applicable while proving a custom – 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 – A person claiming a customary right to succeed to office of Mutawalli would have to show that Waqif intended for the office to devolve through a practice of hereditary succession – In absence of any express directions in Waqfnama to this effect, claimant would have to show that such practice has been in existence throughout history of trust and not merely for a few generations, such that waqif’s intention that office should be hereditary can be presumed – Burden of proof would be higher with respect to a public Waqf than a family trust – Even if Mutawalli belongs to family of Waqif, he is not immune from removal in case of mismanagement of Waqf, and must administer Waqf in accordance with principles of common prudence and probity. (Paras 22, 23, 24 and 35)

       (D) Indian Evidence Act, 1872 – Sections 35, 45 and 81 – Evidentiary value of Gazette – Gazette is an official record evidencing public affairs and its genuineness is presumed under Section 81 of Evidence Act, 1872 – Under Section 35 of Evidence Act, entry made by Gazetteer in discharge of his official duty is a relevant fact – Any fact recorded by Gazetteer may also be considered as expert opinion under Section 45 of Evidence Act – Contents of Gazette can be taken into account to discover historical materials contained therein which Court may consider in conjunction with other evidence and circumstances in adjudicating a dispute, even if it may not be conclusive evidence of fact-in-issue – Such a record cannot be challenged by appellants merely on the ground that it is not a recent publication. (Para 15)

       (E) Customs – Customary Right – 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 established governing rule in a community by common consent – It is incumbent upon party relying on custom to plead and prove it – A singular artificial break or gap in exercise of a customary right, that too by executive orders, would not lead to abrogation of customary right itself unless such break constitutes a recurring infringement or leads to conferment of title in opposite party. (Paras 24 and 29)

       (F) Civil Procedure Code, 1908 – Order I, Rule 8 and Order XXIII, Rule 3B--Representative suits – A person may sue or defend on behalf of others and for benefit of others having the same interest, with permission of Court – Object of Order I Rule 8 is to facilitate 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 leave of Court – Before grant of leave to compromise, 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 suit. (Para 32)

       (G) Kazis Act, 1880 – Section 4 – Appointment as Kazi – After enforcement of Kazis Act in 1970, legal distinction between office of Mutawalli and statutory office of Kazi came into play in Lakshadweep islands – Kazis Act pertains to appointment of a Kazi for a local area where his presence may be required for performing certain rites and ceremonies, whereas respondents in their plaint have clearly stated that they are claiming office of “Mutawalli cum Traditional Kazi of Mosque specifically – At the time of institution of OS, respondents were within their rights to seek relief of office of Mutawalli even after their claim to office of Kazi was defeated. (Para 28)

       Facts of the Case:

       Present dispute pertains to office of Mutawalli of Andrott Jumah mosque situated in Lakshadweep. Mosque is presently a public waqf registered with Lakshadweep Waqf Board. The respondents herein are seniormost male members of different thavazhies (branches of descendants through female line) of Pattakal family. They claim to be descendants of one Saint Ubaidulla, who is stated to have built Andrott Jumah mosque, and who was its first Mutawalli. Thus, they claim that by customary tradition, office of the Mutawalli of mosque is vested with their family.

       Findings of the Court:

       Even if Mutawalli belongs to the family of the waqif, he is not immune from removal in the case of mismanagement of Waqf, and must administer Waqf in accordance with the principles of common prudence and probity. Having regard to the above principle, and to provisions of Waqf Act which take care of contingencies in case of mismanagement, etc., it cannot be said that respondents’ exercise of customary right to office of Mutawalli is unreasonable or violates public policy.

       Result : Appeals dismissed.