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2024 Supreme(Online)(KER) 42209
HIGH COURT OF KERALA
MR. AMIT RAWAL, MR. EASWARAN S., JJ
ALIYATHAMMADA ISAYYAPURA KUNHISEETHIKOYA S/O.MUTHUKOYA, ANDROTH, LAKSHADWEEP – Appellant
Versus
ALIYATHAMMADA BEETHATHEBIYAAPURA MUTHUKOYA THANGAL, S/O.LATE KUNHIKOYA, ANDROTH, LAKSHADWEEP – Respondent
CRP NO. 1204 OF 2005 | CRL.REV.PET NO. 31 OF 2021
For the Appellants/Petitioners: DEEPA NARAYANAN, K.SUJAI SATHIAN, PREETHI. P.V, M.V.BALAGOPAL, GOURI MEEMPAT, SANGEETHA SREEKUMAR, T.SETHUMADHAVAN
For the Respondents: SRI.BABU KARUKAPADATH, SRI.JAGAN GEORGE, SRI.P.M.KUNJIMOIDEENKUTTY, SRI.K.A.NOUSHAD, SRI.P.G.PRAMOD, SRI.T.K.SAIDALIKUTTY, SMT.M.A.VAHEEDA, BABU ABRAHAM K.JOHN, SRI.JAMSHEED HAFIZ
The court upheld the customary rights of the Aliyathammada family to appoint the Katheeb, emphasizing adherence to historical compromises unless formally contested.
Headnote:(A) Wakf Act - Appointment of Katheeb - Customary rights of Aliyathammada family upheld based on historical compromises and Court rulings - Dispute on appointment process clarified - Mutawalli's powers respect customary engagement. (Paras 1, 4, 12, 14, 17)
(B) Jurisdiction of Executive Magistrate - Parties in family dispute regarding religious appointment must adhere to compromises unless formally contested. (Paras 5, 8, 12)
Facts of the case:
The plaintiffs claimed to be the representatives of three thavazhies of Aliyathammada family contesting against Pattakal family concerning the right to appoint the Katheeb of Andrott Juma Masjid, with historical compromises on the roles involved.
Findings of Court:
The previous judgment was set aside with a declaration ensuring the customary rights of the Aliyathammada family regarding Katheeb appointments while obliging the Mutawalli to consult family members for selections.
Issues: The issues revolved around customary rights source, the appointment of Katheeb, and the desecration of established family precedents.
Ratio Decidendi: The court determined that customary rights must be upheld unless demonstrated via evidence to the contrary.
Result: Revision petitions were allowed.
| Table of Content |
|---|
| 1. dispute regarding the appointment of katheeb involves customary rights. (Para 1 , 4 , 5) |
| 2. historical compromises dictate the appointment rights within the family. (Para 2 , 3 , 6) |
| 3. court must uphold customary practices unless formally challenged. (Para 9 , 10 , 11) |
| 4. mutawalli’s role synthesizes both adherence to history and current familial consults. (Para 12 , 14 , 17) |
| 5. final decision reaffirms the family's rights to appoint katheeb as per previous agreements. (Para 13 , 15) |
ORDER
[CRP No.1204/2005 & Crl.R.P.No.31/2021]
Amit Rawal, J.
This order shall dispose of two matters CRP No.1204/2005 titled as Aliyathammada Isayyapura Kunhiseethikoya and Others v. Aliyathammada Beethathebiyyapura Muthukoya Thangal and Others whereby the Civil Suit bearing No.2/2000 preferred by the plaintiff against the defendants, belonging to same very family, whereby claim qua appointment as Katheeb from their family members has been rejected; and Crl.R.P No.31/2021 against the order of Executive Magistrate dated 27.11.2020 whereby in a proceedings under Section 145 Cr.P.C., the family members of the petitioners-plaintiffs in the civil suit have been given liberty to set up dispute regarding appointment of Katheeb after the verdict pending in the High Court i.e, in C.R.P.No.1204/2005 and till such time, the Will of Muthawalli has been kept intact for appointment of Katheeb for smooth conduct of the Juma namas in the Mosque.
2. Succinctly, the facts in brief are enumerated hereinbelow:
I. Plaintiffs claimed to be the representatives of three thavazhies of Aliyathammada family. The dispute revolves around a Mosque called a Jama-ath Palli of Andrott island which is a registered Wakf under the Lakshadweep State Wakf Board. As per the practice, Kazi and Mutawalli of the Mosque had been the members of Pattakal family. However, the post of the Katheeb ie., the main priest for performing the Juma on Fridays was officiated and conducted by the members of Aliyathammada family. II. Owing to some dispute on account of remuneration paid to the Katheebs between the two families, matter reached before the Assistant Collector and a compromise on 05.12.1892 was arrived at and it was decided that the Kuthba/Namas would be performed by the family members of Aliyathammada family on Fridays whereas Mutawalli would be of Pattakal family. Same very dispute again arose in the year 1933, which was also recorded in writing on 26.12.1933 on the same terms. The Katheeb was to be selected from the elder member of the family and if not found suitable, from the male members of Aliyathammada family and if at all no such person is found to be fit, the power would be given to the Pattakal family to appoint a person from outside. Such practice continued, however, the dispute between the two members of Aliyathammada family ie., defendant No.1 again arose resulting into institution of a suit No.2/2000 vis-à-vis the post of Katheeb on the premise that the defendant No.1 had been trying to establish exclusive right of being appointed and entrusted the duty of Katheeb. The details of Katheeb so appointed was enumerated in the plaint, i.e., eight(8) in numbers. It was alleged that defendants in order to stake claim for appointment of Katheeb had also initiated proceedings under Section 144 of Cr.P.C. in the year 1997. However, in revision, the matter was remanded back. It is in that background, declaration and injunction was sought on behalf of plaintiffs restraining the defendants from claiming the appointment of Katheeb in their individual capacity by ignoring the plaintiffs.
III. Suit was contested by the defendants taking up the various pleas including the maintainability, bonafide etc. much less the compromises were though not denied, but it was averred that the right to perform the duty of Katheeb vested of public. Since the parties were at variance, learned Tribunal framed the following issues:
1. Whether the defendants are not entitled to hold the post of Katheeb of
