REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.3382-3383 OF 2019 (Arising out of S.L.P (C) Nos. 32285-32286 of 2018)

HAMMAD AHMED           ........APPELLANT   

             Versus

ABDUL MAJEED & ORS.                          ........RESPONDENTS

J U D G M E N T

Hemant Gupta, J.

Leave granted.

2. The challenge in the present appeals is to an order passed by

the Division Bench of the High Court of Delhi on 27.11.2018 whereby

an application filed by the Plaintiff under Order XXXIX Rules 1 and 2 of

Code of Civil Procedure, 19081 was dismissed. The Division Bench has

set aside an order passed by the learned Single Bench on 25.10.2017.

3. The  dispute  between  the  parties  at  this  stage  is  as  to  who

should  discharge  the  duties  of  Chief  Mutawalli  of  Hamdard

Laboratories (India)2 earlier known as Hamdard Dawakhana, after the

1 Code 2 Hamdard

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death  of  previous  undisputed  Chief  Mutawalli  -  Abdul  Mueed  on

19.03.2015.  

4. The Appellant filed Civil Suit No. 211 of 2017 on 08.05.2017,

whereas  Respondent  No.  2  filed  Civil  Suit  No.  162  of  2017  on

29.03.2017. The suit of the Appellant is for declaration, prohibitory

injunction  and  for  other  reliefs.  The  Appellant  asserted  that  after

death of Abdul Mueed, Chief Mutawalli on 19.03.2015, the Appellant

being living senior most male direct successor of Wakif Mutawalli took

over the Office of Chief Mutawalli on 20.03.2015 when an office order

was issued to this effect by him.  The Respondent Nos. 1 and 2 are

the defendants in the suit filed by the Appellant. Such Respondents

are  sons  of  former  Chief  Mutawalli  late  Shri  Abdul  Mueed,  elder

brother of the Appellant. The Respondent No. 1 – Abdul Majeed also

issued  an  office order  on  23.03.2015,  appointing  himself  as  Chief

Mutawalli.  The Respondent No. 1 issued letters on the basis of such

declaration on 23.03.2015 to various authorities including Banks. It is

in  this  background;  the  Appellant  has  sought  declaration  that  the

Respondent No. 1 is no longer Mutawalli under the Wakf Deed3 dated

28.08.1948 as amended from time to time on account of breach of his

obligations under the said Deed and to issue a decree in nature of

permanent  injunction  restraining  Respondent  No.1  to  continue  as

Mutawalli of Hamdard.  The Appellant also claimed that all decisions,

orders issued by Respondent Nos. 1 and 2 jointly or severally after

20.03.2015 are null and void and of no effect.   

3 Deed

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5. The  Appellant  filed  an  application  under  Order

XXXIX Rules 1 and 2 read with Section 151 of the Code

along  with  the  suit  claiming  the  following  interim

directions:  

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

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

c) An order directing the defendants no. 1 and 2 to handover the password of the domain name www.hamdard.com,  www.hamdard.in and www.hamdardindia.com and  its  e-mail  server password to the plaintiff.  

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

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

6. On  the  other  hand,  Asad  Mueed  son  of  the  previous  Chief

Mutawalli  Abdul  Mueed,  sought  removal  of  Appellant-  Hammad

Ahmed and his son Hamed Ahmed from the position of Mutawallis of

Hamdard  in  the  suit  (Civil  Suit  No.162/2017)  filed  by  him.  The

Defendant No. 4 in the said suit is Abdul Majeed, respondent No.1

herein,  the elder  son of  the last  undisputed Chief  Mutawalli  Abdul

Mueed who died on 19.03.2015. The removal of the Appellant and

Respondent No. 3 was sought inter alia on the ground of malfeasance

and misfeasance of the affairs of Hamdard.  

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8. The learned Single  Bench also did not  find any merit  in  the

argument  that  the  Appellant  has  incurred  disability  on  account  of

pending criminal cases against him in terms of Clause 6 of the 1973

Wakf  Deed4,  as  amended on 26.6.1973.  The learned Single  Bench

held that mere pendency of criminal proceedings cannot debar the

Appellant to be appointed as Chief Mutawalli as the disqualification as

per Clause 6 (2)  of  the Deed is  conviction of  an offence involving

moral turpitude alone for disqualification. The relevant clause reads

as under:-

“In spite of the fact that a person has a right to be appointed as a Mutawalli under Clause Four herein, the  Majlis-e-Ayan  shall  have  the  authority  by  a Special  Resolution,  to  refuse  to  appoint  such person as a Mutawalli  or  in the event of such a person  having  already  been  appointed  as  a Mutawalli, to remove or suspend him from office, if: 1. He is a minor or insane or by reason of lack of  education,  experience  or  old  age  and  weak health is unable satisfactorily to perform his duties as a Mutawalli; 2. He  is  dishonest,  addicted  to  alcohol, gambling  or  has  been  convicted  of  some  crime involving moral turpitude;….”

9. Two First  Appeals  were  preferred by  the  present  Respondent

Nos. 1 and 2. The learned Division Bench set aside the order passed

by the learned Single Judge prima-facie finding that though the rule of

primogeniture  is  not  applicable  as  a  rule  of  succession  amongst

Muslims but that is not a ground to overrule its application if provided

in  the testamentary  or  other  document.  The Division  Bench relied 4 1973 Deed

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upon para  3  of  the  1973 Deed that  after  the death  of  First  Chief

Mutawalli,  the  senior  most  male  descendant  in  his  line  is  to  be

appointed  as  Chief  Mutawalli.  The  Bench  recorded  the  following

findings: -

“28. This  court  is  of  opinion  that  Faqruddin (supra)  is an authority that under Muslim personal law, lineal primogeniture does not apply. However, it nowhere states that lineal male primogeniture is prohibited-either  in  its  application  in  a testamentary  document,  or  in  a  trust.  In  fact  in Faqruddin (supra), the spiritual nature of the office and  the  acceptance  of  the  holder,  by  the congregation  were  proved;  they  were  not  in controversy. For these reasons, that primogeniture is not applicable as a rule of succession amongst Muslims, is not a ground to overrule its application if  a  given  deed  (testamentary  or  otherwise)  so directs. Likewise, in Aruputham (supra), in fact the court  upheld  the  applicability  of  the  relatively simpler  rule  of  succession  through  lineal  male primogeniture,  rather  than  through  a  more complicated generation by generation process of discerning  who  amongst  a  collegial  body,  was entitled  to  “ambulatory”  lineal  primogeniture succession.  

xxx xxx xxx 30. A  complete  reading  of  the  provision (relating  to  succession)  therefore,  leads  one  to conclude  that  after  the  death  of  the  first  Chief Mutawalli,  the senior  most  male  in his  line-  and one who is also a Mutawalli, is entitled to succeed to  the  office.  The  last  condition  is  important, because  one  might  be  the  senior  most  male member; yet existing membership as a Mutawalli ensures  that  the  wakf  is  spared  the  risk  of experimentation and vagaries of administration by one alien to its governance. The last internal clue, which has assumed some importance in this case, is that during the tenure of a Chief Mutawalli (or any  Chief  Mutawalli)  he  is  the  President  of  the Majlis-e-Ayan  “the descendant second in seniority to the Chief Mutawalli will be its Nazir/Secretary”.

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This condition is to be read along with the other two preconditions, because it occurs as part of the principle governing succession. The designation of a Nazir or Secretary, has to be of the “descendant second  in  seniority  to  the  Chief  Mutawalli”.  In other  words,  the  successor  to  the  office  is  also revealed  during  the lifetime of  the  holder,  Chief Mutawalli,  in  the  persona  of  the  Nazir,  who  is second in seniority to the Chief Mutawalli.”

10. Some facts leading to the present appeals are - Hakim Hafiz

Abdul Majid started the business of Hamdard as a sole proprietor in

the year 1906. He died on 22.06.1922 leaving behind his wife Mst.

Rabea  Begum and two sons,  Haji  Hakim Abdul  Hamid  and  Hakim

Mohd. Sayeed. These three executed a Deed on 28.08.1948 in order

to  manage  the  affairs  of  Hamdard.   The  Deed  inter  alia when

translated in English recites as under:  

“1. There shall be at least one or maximum two Trustees (Mutwalli) and if there is one Trustee then he will  be  given  fees  of  Rs.1  anna from special profit and if there are two Trustees then both will get from the income Rs. 1.5 anna as commission and this right will be beside the share of the family income which according to the terms of the Trust Deed will be obtained by the Trustee or Trustees from his forefather, but till  the time owner no. 1 and 2 will remain as the Trustee of the Trust they will not be given any right under this section. 2. Till  the  time  we  owners  from  this  Trust, ownership No. 1 Haji Abdul Hameed and owner No. 2  Hakeem Hafiz  Mohd.  Sayeed  is  alive  then  we both will be Trustee of this Trust and all the rights regarding the management of the Trust will remain jointly and severally with both of us and this right will  be  received  by both  of  us  managers  jointly. That  we  can  appoint  someone  else  as  Trustee during our life time or we can include any other person  to  share  the  benefit  of  the  Trust  with compensation   or  without  compensation  and for

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making  arrangement  after  our  death  we  can appoint any person as a Trustee against the terms of the Trust Deed and we both the Trustees will have rights during our life time jointly and in the case  that  only  one  Trustee  is  alive  then  he  will have this right alone to decide regarding that the above mentioned condition and the arrangement or way of distribution of the income and right of inheritance  in  the  above  Trust  Deed  in  proper manner or to increase or decrees it. The Trustee or Trustees  we  will  appoint  under  this  section  for doing our work through written agreement, after us only that persons can be appointed as Trustee. Right  to  remove  the  trustee  which  will  be nominated and appointed by us will be there to us jointly or separately.  3. In case of  death of  anyone of  the Trustee then the deceased Trustee will be replaced by his eldest  son  and  in  case  of  death  of  the  other trustee he will be replaced by his eldest son and if out of us the trustees anyone son is minor or he is not capable to fulfil the duties of the trustees then till  that son becomes major and capable to fulfil the duties of trustees the sol trustee will manage all  the  works  of  the  Trust  alone.  After  we  both trustees till  the time whenever there will  be two trustees of the trust, their right will be distributed by  resolution  by  Majlis-e-Ayan,  but  the  Majlis-e- Ayan will  not  have  right  to  decide  the  rights  or increase  or  decrease  the  right  or  to  distribute rights of both the Trustees together or separately without any special reason or justification because of  which  both  the  trustees  or  anyone  of  them cannot perform his duties with full independence or properly.  4. After us,  and after the trustee or  trustees who will be appointed as Trustees, the trustee of this Trust will be appointed from our sons who will be the eldest in the age and after that from son of our  sons  the  eldest  son  will  be  appointed  as Trustee and in this manner the appointment of the trustee  of  the  trust  will  continue  from our  sons generation by  generation  and if  no son is  there from our children who is capable of managing and taking care of this Trust then out of the sons of our daughter,  one  will  be  appointed  as  the  Trustee, and if the sons of our daughter are not capable to

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manage  Trust,  then  from  our  children  any  such lady  will  be  appointed  as  Trustee  who  has capability  of  trustee.   God  forbids  out  of  our children any male or female who is capable to be appointed as trustee is not there then the Majlis-e- Ayan will have a right through the resolution they can appoint any non-family person as trustee who is capable to manage and increase the trust.”

11. Mst.  Rabea  Begum  died  on  5.10.1948,  whereas,  the  other

Trustee Hakim Mohd. Sayeed migrated to Pakistan in the year 1948.

His  interest  was  declared  evacuee  property  on  06.08.1948.

Subsequently, his share was purchased by Hamdard for the purpose

of Wakf Quami, that is for charity on 22.06.1950. Thus, Haji Hakim

Abdul Hamid became the sole surviving Wakif Mutawalli in terms of

the 1948 Deed.  

12. The above said Wakif Mutawalli in the year 1964 appointed his

two sons Abdul Mueed (born in the year 1935) and Hammad Ahmed

(born in 1945) as Mutawallis.  The Wakif Mutawalli has issued various

declarations from time to time in respect of working of Hamdard. On

the basis of all such declarations, a comprehensive declaration was

issued  on  02.07.1973  amending  the  1948  Deed substantially.  The

amended  Deed  was  countersigned  by  the  Wakif  Mutawalli  on

26.6.1973. It may be stated herein that though the declaration and

the countersignatures are of different dates but both documents are

contemporaneous and almost containing similar recitals.  

13. The  Appellant  relies  upon  the  declarations  in  the  nature  of

amendments  in  the  1948  Deed  carried  on  02.07.1973  as  to  who

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should manage the affairs of the Wakf after the Wakif Mutawalli. The

relevant extracts from the declaration issued by the Wakif Mutawalli

read as under:  

“2.  In  exercise  of  the  rights,  powers  and  duties vested in me by the Wakf-Deed I had made some declarations for efficient and better management of  the  Wakf  and  for  clarifications  and interpretations  and  removal  of  doubts  and difficulties  and  the  said  declarations  have  been enumerated  as  various  appendices  to  the  Wakf- Deed  and  now  they  stand  merged  and incorporated in the text of the relevant provisions and  appropriate  contexts  for  the  sake  of convenience.   These  declarations  were  made  to meet  the  exigencies  of  time  and  situation  and within the framework of the Wakf for the benefit of charity and advancement of charitable objects and compliance of the basic provisions of the Wakf.  3. In  view  of  the  vast  expansion  in  the activities  of  the  charity  for  which  the Wakifs dedicated,  complex  problems  of  modern management  and  for  more  efficient administration, control and fulfilment of the object of  charity  and  to  meet  the  requirements  of  the changing  tax  and  other  laws  it  has  become necessary  to  make  a  further  declaration  for clarification,  explanation,  elucidation,  alteration, removal of doubts and difficulties, if any, and for further  exposition of  the provisions and meeting the  requirements  of  changing  laws  and safeguarding  the  objects  of  charity  and  the business of the Wakf which is for charity and for advancement  of  the  charitable  objects. Accordingly,  I,  in  my  capacity  as  sole  Wakif- Mutawalli,  do  hereby  declare  on  solemn affirmation  regarding  matters  referred  to  above, effective from 01.01.1973:”

xxx xxx xxx  

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“Clause No. 1: This  clause  is  substituted  by the following text; “For the management of the Wakf there shall be at least one and at the most five Mutawallis including the Wakif-Mutawalli and the Chief Mutawalli.” “The senior most among the male descendants of the Wakif-Mutawalli who shall be holding an office of Mutawalli will be the Chief Mutawalli. After the Wakif-Mutawalli  ceases  to  be  Mutawalli,  every Chief  Mutawalli  shall  have  the  same  rights  and duties of administration of the Wakf and power of making  regulations  therefore  as  are  provided  in this  Deed  for  the  Wakif-Mutawalli  and  allocate rights and duties among other Mutawallis.   With the exception of Wakif-Mutawalli, the remuneration of the Chief Mutawalli and Mutawallis for services rendered  to  the  Wakf  shall  be  such  as  may  be decided upon by the Wakif-Mutawalli and after he ceases to be Mutawalli, by the Chief Mutawalli in case of Mutawallis, and the Majlis-e-Ayan in case of Chief  Mutawallis.   These  remunerations  will  be decided upon after taking into account the nature of service rendered by each one of them and the extent of the activities of the Wakf.”  “The above remuneration of a Mutawalli will be in addition to the share  of  Khandani  Income which may be due to him under this Wakf-Deed, except in  the  case  of  Wakif-Mutawalli  Hakim  Abdul Hameed.  During  the  life  time  of  Wakif-Mutawalli Hakim Abdul  Hameed there will  be no Khandani Income.  He will be paid for services rendered Rs. 72,000/- a year or 7/64 whichever is less.”  

xxx xxx xxx Clause 3: This  clause  is  substituted  by  the following text:  “The  First  Chief  Mutawalli  will  be  appointed  by Wakif-Mutawalli.   And thereafter  the senior  most male descendant  in line of  succession (of  Wakif- Mutawalli) and then holding an office of Mutawalli will  be  the  Chief  Mutawalli.   After  the  Wakif- Mutawalli, the division of rights and duties among the  Mutawallis  shall  be  made  by  the  Chief Mutawalli for efficient working of the Wakf and the Majlis-e-Ayan  shall  have  no  right  to  disturb  this

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division or render it difficult for the Chief Mutawalli or  any  of  the Mutawallis  to  perform his  or  their duties to manage the Wakf satisfactorily and with proper freedom of action.”  

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

xxx xxx xxx Clause 42 : This  Clause  is  substituted  by  the following text: “42.: During  the  life  time  of  Wakif  Mutawallis there will be no Khandani Income.  He will be paid for  the services rendered Rs.  72,000/-  a  year  or 7/64 of the net divisible profit whichever is less. The  Khandani  Income  will  arise  and  become payable only after the death of Wakif-Mutawalli as per Shariat law.”  “42-A.: Mr. Abdul Mueed and Mr. Hammad Ahmad, sons of Wakif-Mutawalli Hakim Abdul Hameed, are nominated as his successors under the terms of this  Deed.  They are the two other Mutawallis  of this Wakf appointed by the Wakif-Mutawalli.  They will  act  as  Chief  Mutawallis  and  Mutawallis respectively.  They will be paid salaries for services rendered  to  the  Wakf  as  fixed  by  the  Wakif- Mutawalli.  This shall be charged to the profit and loss  account  of  the Wakf.   The salaries  of  other Mutawallis  will  be  fixed  by  Wakif-Mutawalli/Chief Mutawalli.   The  salary  of  subsequent  Chief Mutawalli will be fixed by Majlish-e-Ayan.””  

14. The  1948  Deed  as  countersigned  on  26.06.1973  after

incorporation  of  the  amendments  by  Wakif  Mutawalli  has  been

appended as Annexure P.1. The relevant extracts from such amended

document are as under:  

“1. For the management of the Wakf there shall be at  least  one and at  the most  five Mutawallis including  the  Wakif  Mutawalli  and  the  Chief Mutawallis.  

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The senior most among the male descendants of the Wakif Mutawalli who shall be holding an office of the Mutawalli will be the Chief Mutawalli.  After the Wakif Mutawalli ceases to be Mutawalli, every Chief  Mutawalli  shall  have  the  same  rights  and duties of administration of the Wakf and power of making regulations therefor as are provided in this Deed for the Wakif  Mutawalli  and allocate rights and  duties  among  other  Mutawallis.   With  the exception of Wakif Mutawalli, the remuneration of the  Chief  Mutawalli  and  Mutawallis  for  services rendered  to  the  Wakf  shall  be  such  as  may  be decided upon by the Wakif Mutawalli and after he ceases to be Mutawalli, by the Chief Mutawalli in case of Mutawallis, and by Majlis-e-Ayan in case of Chief  Mutawalli.   These  remunerations  will  be decided upon after taking into account the nature of service rendered by each one of them and the extent of the activities of the Wakf.  The above remuneration of a Mutawalli will be in addition to the share  of  Khandani  Income which may be due to him under this Wakf-Deed except in the case of Wakif Mutwalli Hakim Abdul Hameed. During  the  life  time  of  Wakif  Mutawalli  Hakim Abdul Hameed there will be no Khandani Income. He will be paid for services rendered Rs. 72,000/- a year or 7/64 whichever is less.  

xxx xxx xxxx 3. The First Chief Mutawalli  will  be appointed by Wakif Mutwalli thereafter the senior most male descendant  in  line  of  succession  (of  Wakif Mutawalli) and then holding an office of Mutawalli will  be  the  Chief  Mutawalli.  After  the  Wakif- Mutawalli, the division of rights and duties among with  Mutwallis  shall  be  made  by  the  Chief Mutawalli for efficient working of the Wakf and the Majlis-e-Ayan  shall  have  no  right  to  disturb  this division or render it difficult for the Chief Mutawalli or  any  of  the Mutawallis  to  perform his  or  their duties to manage the Wakf satisfactorily and with proper freedom of action.  

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

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xxx xxx xxx 6. In spite of the fact that a person has a right to be appointed as a Mutwalli under Clause Four herein, the Majlis-e-Ayan shall have the authority by a Special Resolution, to refuse to appoint such person as a Mutawalli  or  in the event of such a person  having  already  been  appointed  as  a Mutawalli, to remove or suspend him from office, if: (1) He is a minor or insane or by reason of lack of  education,  experience  or  old  age  and  weak health is unable satisfactorily to perform his duties as a Mutawalli; (2) He  is  dishonest,  addicted  to  alcohol, gambling  or  has  been  convicted  of  some  crime involving moral turpitude;….

xxx xxx xxx 8. In the event of Wakif Mutawalli  ceasing to be  the  Mutawalli  of  this  Wakf,  the  general superintendence of the Wakf shall vest, subject to the terms of this Deed, in a Majlis called Majlis-e- Ayan.   However,  the  Majlis-e-Ayan  shall  not interfere in the day to day administration of  the Wakf.   The  rights  and  powers  that  have  been reserved for exercise by the Majlis-e-Ayan shall be exercised by the said Majlis-e-Ayan only after the death of Wakif Mutawalli or when he ceases to be Mutawalli.   This Majlis  shall  have a maximum of nine  members  nominated  by  Wakif  Mutawalli including all  the Mutawallis in office.  The future vacancies will  also be filled in by nomination by Wakif-Mutawalli in his life time and after his death by the members of the Majlis-e-Ayan from out of his  heirs,  legal  representatives  and  all  persons male  or  female  who  are  entitled  to  a  share  in Khandani  Income either  in  their  own right  or  as rightful guardian of the minor beneficiaries.  The Wakif Mutawalli  after his ceasing to be Mutawalli and all  the Mutwallis  in  office shall  be ex-officio members of the Majlis-e-Ayan.  They shall have all the rights and duties of the members of Majlis-e- Ayan including the right to vote.  9. An  ordinary  meeting  of  the  Majlis-e-Ayan shall, subject to the rules and bye-laws framed by

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it,  be  held  at  least  twice  a  year.  (Whenever) Whatever resolutions are passed by a majority of votes of members present at such meetings, the same  shall  be  called  ‘ORDINARY  RESOLUTIONS’. The  Chairman  of  the  Meeting  shall  have  the casting vote.

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

15. The  Wakif  Mutawalli  appointed  his  grandsons  Abdul  Majeed

(eldest son of Abdul Mueed born on 23.12.1969) and Hamed Ahmed

(eldest son of Hammad Ahmed born on 25.3.1977) as Mutawallis on

30.05.1995 as fourth and fifth Mutawalli. Haji Hakim Abdul Hamid, the

Wakif Mutawalli died on 22.07.1999 that is after the amendments in

the deed of Wakf.  

16. On  04.07.1995  the  Wakif  Mutawalli  constituted  Board  of

Mutawallis.  Abdul Mueed was declared to be the Vice Chairman and

his son Abdul Majeed as Secretary of the Board of Mutawallis. Such

declaration reads as under:

“HAMDARD Dated 04/07/1995

CONSTITUTION OF THE BOARD OF MUTAWALLIS

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Presently,  Wakif  Mutawali,  Chief  Mutawali  and Mutawali are consulting and discussing the affairs of the Hamdard Dawakhana (Wakf) both formerly and informally. Now two more Mutawallis, viz. Mr. Abdul Majeed & Mr. Hamid Ahmed eldest sons of Mr.  Abdul  Mueed  and  Mr.  Hammad  Ahmed respectively,  are  appointed  as  Mutawallis  of  the Wakf.  They  will  be  working  from  the  day  they assume their offices.  It  is  felt  that  the  Board  of  Mutawallis  should  be constituted in the life of Wakif Mutawalli, which can be converted later into “Majlis-e-Ayan” after Wakif Mutawali ceases of hold his office. As  per  clause  8  of  the  Wakf  Deed  of  Hamdard Dawakhana, “Majlis-e-Ayan” will  be constituted in the  event  of  Wakif  Mutawalli  ceasing  to  be Mutawalli of Wakf for the general superintendence of the Wakf. With this order,  I  hereby constitute the board of Mutawallis for the Hamdard Dawakhana (Wakf) as under:-

1. Hakeem Abdul Hameed (Wakif Mutawalli)     : Chairman

2. Mr. Abdul Mueed : Vice Chairman

3. Mr. Hammad Ahmed : Senior Mutawalli

4. Mr. Abdul Majeed         : Mutawalli

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

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

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

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

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

The  Board  of  Mutawallis  will  also  review  the reports,  budgets  and  plans  of  the  Aid  Receiving Institutions from Hamdard Dawakhana(Wakf). This Board will start functioning from today.  

Sd/- (Hakeem Abdul Hameed)

Wakif Mutawalli”

17. After the death of Wakif Mutawalli, Abdul Mueed as the Chief

Mutawalli appointed Asad Mueed, his younger son born on 1.9.1973,

as the fifth Mutawalli on 17.04.2000. It is said Asad Mueed, who is

Plaintiff in Civil Suit No. 162 of 2017. Abdul Mueed died on 19.3.2015,

leading to disputes between the parties.

18. Sajid Ahmed son of Hammad Ahmed (born on 5.6.1978) was

appointed  as  fifth  Mutawalli  on  14.4.2015  by  Hammad  Ahmed

claiming  himself  to  be  Chief  Mutawalli  after  the  death  of  Abdul

Mueed, the first and last undisputed Chief Mutawalli.

19. In this background, the learned Senior Counsel for the Appellant

argued that  the  rule  of  primogeniture  is  not  contemplated  by  the

Deed as amended in the year 1973 by the Wakif Mutawalli. Learned

Senior Counsel for the Appellant refers to the various clauses of the

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1948 Deed, which contemplate that the Wakif, his sons and grand-

children  would  not  get  anything  as  income  but  could  receive

remuneration only for consideration of services rendered to the Wakf.

The Wakif  Mutawallis  and their  successors  would  have no right  of

ownership  or  power  of  disposition  in  the  capital,  the  assets,  the

corpus and the properties of the Wakf or any appreciation in value

thereof.  

20. Earlier  four suits  including one  by  Hamdard bearing Suit  No.

117 of 1972 were decided by the learned Single Bench of High Court

of Delhi on 23.12.2011.  The challenge in the suit was to a notification

dated 12.12.1970 declaring Hamdard as Wakf under the Wakf Act,

1995. The said notification was alleged to be illegal and void.  It was

held therein that the Hamdard is not a Wakf within the meaning of the

Wakf  Act.  The relevant  extracts  from the judgment  of  the learned

Single Judge read as under:   

“74.  In view of the above discussion, it is held that the Dawakhana Wakf is not a Wakf within the meaning of the term, under the Wakf Act, despite the use of the term “wakf” (which appears to be misleading). It is settled law that nomenclature of a document or deed is not conclusive of what it seeks  to  achieve;  the  court  has  to  consider  all parts of it, and arrive at a finding in regard to its true effect….

xxx xxx xxx

77. In this case, as held earlier, the Dawakhana Wakf  is  not  a  wakf,  on an  application of  all  the relevant  tests.   Therefore,  the  question  of  the Nursing Home, the Institute of History of Medicines and  Medical  Research,  Hamdard  National Foundation,  Indian  Institute  of  Islamic  Studies being  wakfs  just  because  their  properties  were purchased  out  of  the  income  of  the  Dawakhan

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Wakf, would not arise. Some of them, are in fact independent  juristic  entities,  being  societies, capable of,  and in fact holding properties. In the case of registered societies, by virtue of Section 5 of  the  Societies  Registration  Act,  1860  the property, movable and immovable, belonging to it, if not vested in trustees, would be deemed to be vested in its governing body.  This is completely contrary to a wakf, where the mutawalli is a mere manager;  the  property  is  perpetually  and irrevocably  dedicated  to  God  Almighty. Furthermore, each of the said bodies and entities is autonomous, and the Dawakhana Wakf is not the exclusive donor; it is one of the sources of grant. They  can  itself  seek  donations  and  grants  from other institutions in furtherance of  its objectives. Lastly, there is nothing in the deeds or instruments creating  them,  either  in  the  Memorandum  or Articles  of  Association,  indicative  of  perpetual dedication,  or  its  being  in  favour  of  the  Lord Almighty,  to  obtain  divine  pleasure.   In  other words,  the controlling instruments,  or documents which  have  created  these  institutions,  are singularly  silent  about  the  essential  elements which signify a wakf.   The court  therefore,  holds that the said institutions are not wakf, even though some of them are beneficiaries of the Dawakhana Wakf.  The  issues  are  answered  against  the Defendants, and in favour of the plaintiff.”

Such judgment and decree was affirmed in the appeal.

21. The argument is that the entire reading of the Deed particularly

Clauses 1, 3 and 42-A would show that the senior most surviving male

successor is contemplated to be the Chief  Mutawalli,  whereas,  the

four other male successors/descendants are contemplated to be the

Mutawallis. The Deed also contemplates that in the event, if there is

no male descendant in the direct line of succession who is fit person

to assume charge as a Mutawalli of the Wakf, then anyone from the

male  descendant  of  the  female  issue  being  rightful  claimant  to

succession  shall  be  appointed  as  Mutawalli.  If  there  is  no  male

descendant  of  the  female  issue,  who  is  fit  enough  to  become  a

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Mutawalli then any female issue of descendants who shall be fit to

become Mutawalli shall be so appointed. It is only in the event, when

there  is  no  male  or  female  left  from  the  male  and  female

descendants,  Majlis-e-Ayan  shall  have  the  right  to  appoint  by  an

extra-ordinary resolution, someone from outside the family who has

the ability to act as a Mutawalli and to administer the Wakf property.

22. In terms of Clause 1 of the 1973 Deed, there shall be minimum

of one and maximum of five Mutawallis including the Wakif Mutawalli

and  the  Chief  Mutawalli.  The  senior  most  amongst  the  male

descendants of the Wakif Mutawalli who shall hold the office of the

Mutawalli, will be Chief Mutawalli. On the basis of such clause, it is

argued that for a Chief  Mutawalli,  the condition is that the person

should  be  Mutawalli  and  the  senior  most  amongst  the  male

descendants of the Wakif Mutawalli shall be the Chief Mutawalli. After

the death of Wakif Mutawalli, the senior most male descendant, Abdul

Mueed came to discharge the duties of  Chief  Mutawalli.  Therefore,

after his death, the Appellant being senior most male descendant of

the Wakif Mutawalli, is to act as Chief Mutawalli. Abdul Majeed, the

elder son of First Chief Mutawalli cannot be the Chief Mutawalli as is

made out from the nature of the bequest and the cumulative reading

of the Wakf documents.  

23. Learned Senior Counsel for the Appellant refers to Clause 3 of

the Deed amended in  the year 1973 to argue that  the First  Chief

Mutawalli  is  to  be  appointed  by  Wakif  Mutawalli.  Thereafter,  the

senior most male descendant in line of succession and then holding

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an office of Mutawalli will be the Chief Mutawalli. It is further stated

that the Chief Mutawalli would be called President of the Majlis-e-Ayan

and the descendant, who is second in seniority to the Chief Mutawalli

will be its Nazir (Secretary).

24. Referring to Clause 42-A of the 1973 Deed, it was pointed out

that Abdul Mueed was appointed as Chief Mutawalli and the Appellant

as Mutawalli by the Wakif Mutawalli. Therefore, a reading of the entire

document would show that the object of the Deed is to appoint the

senior  most  male  descendant  as  the  Chief  Mutawalli.  Since  the

Appellant is the senior most male descendant, he has rightly issued

an order on 20.03.2015 to take over the responsibilities as a Chief

Mutawalli.  

25. Mr. Vasdev, learned Senior Counsel for the Appellant argued

that Asad Mueed has not pleaded in the suit that Abdul Majeed is

entitled to be Chief Mutawalli in view of rule of primogeniture or that

Abdul Majeed is Chief Mutawalli, but it was only in replication the

plea  of  applicability  of  rule  of  primogeniture  was  raised.  It  was

submitted relying upon the judgment in  Faqruddin v.  Tajuddin5

that rule of primogeniture has no application amongst Muslims.

26. The  reliance  is  placed  upon  an  earlier  order  passed  by  the

Division  Bench  of  the  High  Court  of  Delhi,  in  FAO(OS)  208/2017,

directed against an order of the learned Single Bench of 26.5.2017,

wherein learned counsel for the parties stated that issue relating to

Chief  Mutawalli  is  of  considerable  importance  as  it  affects  the 5 (2008) 8 SCC 12

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functioning of the aforesaid institutions/ organisations.  The appeals

were decided in view of the fact that the matter was listed before the

learned Single Judge on 30.8.2017.   The relevant extract from the

said order reads as under:

“3. Learned counsel  for  the parties  state  that the  issue  relating  to  Chief  Mutawalli  is  of considerable  importance  as  it  affects  the functioning  of  the  aforesaid institutions/organisations.  Counsel for the parties state  that  they  will  make  a  request  for  early adjudication of the said issue.  We hope and trust the  matter  would  be  decided  expeditiously.   We also record that the matter is already listed before the single Judge on 30th August, 2017.”

27.  It  was  argued  that  there  is  no  impediment  or  bar  on  the

judgment of a Court to grant an injunction, even at the interim stage

if there is illegality for the reason that the Appellant is the senior most

male  descendant  in  the  line  of  Wakif  Mutawalli,  therefore,  the

Appellant is entitled to control of domain names as Chief Mutawalli.

Reliance  has  been  placed  upon  the  judgment  reported  as  Dorab

Cawasji Warden v. Coomi Sorab Warden and Others6.   It was

also argued that in an Appeal against an order of injunction, a Court

of Appeal interferes not when the judgment under attack is not right,

but only when it is shown to be wrong, placing reliance upon Dollar

Company, Madras v. Collector of Madras7.  The reliance is also

placed upon a judgment reported as  Wander Ltd and Another v.

6 (1990) 2 SCC 117 7 (1975) 2 SCC 730

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Antox India P. Ltd.8 that the Appellate Court will not reassess the

material  and  seek  to  reach  a  conclusion  different  from  the  one

reached by the court below, if the one reached by the court below

was  reasonably  possible  on  the  material.   The  reliance  was  also

placed upon the judgment reported in  Mohd. Mehtab Khan and

Others  v.  Khushnuma  Ibrahim  Khan  and  Others9 that  the

Appellate Court should not have substituted its view on the matter

merely on the ground that in its opinion the facts of the case call for a

different conclusion.   

28. Learned  Senior  Counsel  for  the  Appellant  argued  that  the

judgment reported as  A. Aruputham v. A.V. Yagappa10  has been

wrongly  applied  to  hold  that  the  principle  of  lineal  primogeniture

applies in the present case.  The said judgment arises out of a case

where  the  parties  are  governed  by  the  Hindu  Law  of  Succession

wherein testator has specified that his estate to come to his son and

sons by the rule of primogeniture.  In the present case, in the case of

Hanafi Muslims, the Deed governing the succession  to manage the

affairs of a Wakf specifies a line of succession as different and distinct

from the said judgment. The succession to the office of Mutawalli is

governed by the terms of Deed.  Therefore, the question that who will

succeed as a Chief Mutawalli is to be arrived at only from the entire

reading of the Deed.  

8 (1990) Suppl. SCC 727 9 (2013) 9 SCC 221 10 (1971) 3 SCC 808

23

29. It is also argued that on 28.04.2015, a resolution was passed by

all the Mutawallis that the banking operations shall be carried out by

Abdul Majeed and Hammad Ahmed. In pursuance of such resolution,

more than Rs. 900 crores have been disbursed to various parties in

the last 2 years. Since there is no rule of primogeniture and the Deed

as amended in the year 1973 has not changed the basic concept of

Wakf Management in the hands of two sons of Wakif Mutawalli and

their  successors  with  the  condition  that  the  senior  most  male

descendant will be the Chief Mutawalli, therefore, Abdul Mueed, the

senior most male descendant, after the death of Wakif Mutawalli was

rightly designated as Chief Mutawalli and after his death, by virtue of

the Deed, the Appellant has rightly declared himself to be the Chief

Mutawalli.  

30.   Mr. Rohatgi, learned Senior Counsel for the Respondents argued

that  order  of  the  Division  Bench  passed  on  04.08.2007  relates  to

issues pertaining to Chief Mutawalli, the issue that is to be framed in

a  suit  and  not  for  the  purpose  of  deciding  an  interim  injunction

application.  Since  the  issues  in  the  suit  have  not  been  framed,

therefore, the question that who will be the Chief Mutawalli is not an

issue to be decided at the time of consideration of application under

Order XXXIX Rules 1 and 2 of the Code.

31. It is also argued that in an application under Order XXXIX Rules

1 and 2 of the Code, the Court will not grant interim mandatory relief

resulting in  creation of  entirely  new state of  affairs  which hitherto

never existed.  The reliance is placed upon Samir Narain Bhojwani

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v.  Arora  Properties  and  Investments  and  Another11.  It  is

contended that the declaration of the Appellant to be Chief Mutawalli,

disputed  immediately  by  Respondent  No.  1,  does  not  mean  the

existence of  status  at  the  time of  filing  of  the  suit  which  can be

protected in an application under Order XXXIX Rules 1 and 2 of the

Code.  Since the Appellant has sought passwords of domain names,

server and Enterprise Resources Planning System, it shows that the

Appellant  was  not  in  control  of  the  management  of  Hamdard,

therefore,  injunction to  hand  over  of  the  passwords  and  thus

management of Hamdard  cannot be granted being an injunction in

the mandatory form.  

32.   It is also argued that Respondent No. 1 being in actual control

of Hamdard was not required to file a substantive suit for control of

the Organisation as he was already in control of the Organisation and

all Heads of the Departments of Hamdard report to him. He is the

occupier  of  all  factories  and  the  holder  of  all  licences  allotted  to

Hamdard.   

33. It is submitted that the language of the Deed as amended had

to be different if the contention of the Appellant is to be accepted.

Though 1948 Deed sets out the “line of succession” of the said Wakif

Mutawalli but the amended deed does not contain any such or similar

clause.  

34.   In pursuance of such Deed, Abdul Majeed was declared to be

Nazir by the Wakif Mutawalli on 04.07.1995 during his life time. Such 11 2018 (10) Scale 33

25

declaration will negate the argument that the Appellant was not the

second in the line of succession competent to be appointed as Nazir

in terms of Clause 3 of 1973 Deed. The parties have understood that

position since 1995 when Abdul Majeed was declared as Nazir. The

Appellant has not disputed such arrangement for more than 20 years;

therefore,  the  Appellant  cannot  assert  himself  to  be  the  Chief

Mutawalli. It is also argued that Abdul Mueed died on 19.03.2015 but

the suit has been filed only on 16.05.2017, asserting himself to be

Chief Mutawalli. Such assertion also suffers from delay and laches. It

is argued that the words “in line of succession” would be rendered

otiose and meaningless if the contentions raised by the Appellant is

to be accepted.  

35.  Relying  upon  the  judgment  reported  as  The Secretary  of

State  for  India  in  Council  v.  Syed  Ahmad  Badsha  Sahib

Bahadur12, it  is argued  that  in  the  case  of  single  indivisible

hereditary office, the succession should be governed by the principle

of  lineal  primogeniture  in  the  absence  of  clear  evidence  to  the

contrary.   

36. Further, the Division Bench has remitted the matter back to the

learned  Single  Bench  to  frame  a  neutral  administrative  oversee

mechanism for the management of Hamdard to balance the interests

of the parties.   Therefore,  the order passed by the Division Bench

does not require any interference.

12 (1921) LW Mad.188 (DB)

26

objectives. Lastly, there is nothing in the deeds or instruments  creating  them,  either  in  the Memorandum or Articles of Association, indicative of perpetual  dedication, or its being in favour of the  Lord  Almighty,  to  obtain  divine  pleasure.  In other  words,  the  controlling  instruments,  or documents which have created these institutions, are singularly silent about the essentials elements which  signify  a  wakf.  The  court  therefore,  holds that  the  said  institutions  are  not  wakfs,  even though  some  of  them  are  beneficiaries  of  the Dawakhana Wakf. The issues are answered against the Defendants, and in favour of the plaintiff.”

38. Thus, the nature of Hamdard was settled that it is not Wakf as is

defined in  the Wakf  Act,1995 and that  the property,  movable and

immovable,  belonging  to  it  would  be  deemed  to  be  vested  in  its

governing body.

39.     We do not find any merit in the argument that the consent of

the  parties  in  an  appeal  against  an  interim  order  passed  on  an

application under Order XXXIX Rules 1 and 2 of the Code related to

issues  which  are  required  to  be  framed  after  completion  of  the

pleadings  in  a  suit.  The  appeal  was  directed  against  interim

injunction,  therefore,  the expression “issue” used in  para 3  of  the

consent order  is not  the  issues  in the suit, but the questions  which

arise  for  consideration  at  the  ad-interim stage.   The  parties  have

agreed that the question of considerable importance relates to  the

appointment of  Chief  Mutawalli  at  the time of  consideration of  an

interim  application.  Both  the  courts  have  examined  the  Deeds  to

consider  as  to  whether  the  Appellant  can  be  said  to  be  Chief

Mutawalli.   

28

40. The  learned  Single  Judge  held  that  the  Appellant  is  a  Chief

Mutawalli by interpreting the Wakf Deed, whereas, the Division Bench

has taken a different view.  In fact, the Division Bench relied upon A.

Aruputham case (supra) which was in respect of a construction of

a Will relating to vesting of the estate of the testator-a Hindu Male.

The said judgment  is  not applicable in respect of appointment of a

Chief Mutawalli which is not a case of succession of the property of

the deceased  governed by Muslim personal law but appointment of

successor  under  a  deed  executed  by  Wakif  Mutawalli  for  the

management of Hamdard. The question relates to construction of the

Wakf Deed as amended in the year 1973 for the management of Wakf

as to who shall have the right to manage the affairs of Hamdard and

not the succession of an estate of the deceased.  Therefore, we find

that the Division Bench has wrongly relied upon A. Aruputham case

(supra).   

41. The  learned  Division  Bench  referred  to  Faqruddin’s  case

(supra) that under Personal Law  the rule of  lineal primogeniture is

not  applicable  as  a  rule  of  succession  amongst  Muslims,  is  not  a

ground  to  overrule  its  application  if  a  deed  (testamentary  or

otherwise)  so  directs.   It  is  thereafter,  the  Division  Bench  has

interpreted  the  amended deed of  wakf  and  also  the  resolution  of

04.07.1995  to  hold  that  lineal  male  primogeniture  is  the  rule  of

succession  applied  to  the  office of  Chief  Mutawalli  rather  than an

uncertain collegial ambulatory lineal succession.  

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42. The rule of primogeniture is not a rule applicable to the Muslims

as  per  the  Personal  Law  as  held  in  Faqruddin’s  case  (supra).

Therefore,  the  primary question  between  the  parties  relating  to

appointment of  Chief  Mutawalli  has  to be decided on the basis  of

construction of 1948 Deed  and  the  amendments made in the year

1973 by the Wakif Mutawalli. The 1948 Deed is unambiguous that two

brothers  Haji Hakim Abdul Hamid and Hakim Mohd. Sayeed shall be

Trustees and that in case of death of any one of the Trustee then the

deceased Trustee will  be replaced by his  elder  son and in  case of

death of other Trustee he will be replaced by his elder son (Clause 3

as reproduced above).  Similarly,  Clause 4  of  the Deed is  that  the

Trustees of the Trust will  be appointed from their sons who will  be

eldest in age and after that from the sons of their sons, the elder son

will be appointed as Trustee.  

43. The  1973  Deed  is  not  a  new  document  but  includes

amendments in the 1948 Deed based upon the declarations made by

the Wakif Mutawalli from time to time compiled on 02.07.1973. Last

page of document Annexure “P-1” would show that it is not a new

document but the document incorporating amendments which were

counter signed by Wakif  Mutawalli  on 26.06.1973. Clause 3 of  the

declaration as also the amended Deed of Wakf and Deed in the year

1973, referred to by the parties, read as under:  

Deed as amended in the year 1973 Declaration 3. The First Chief Mutawalli will be  appointed  by  Wakif  Mutwalli thereafter  the  senior  most  male

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

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descendant in line of succession (of Wakif  Mutawalli)  and  then  holding an  office  of  Mutawalli  will  be  the Chief Mutawalli.   

“The First Chief Mutawalli will be appointed  by  Wakif-Mutawalli. And  thereafter  the  senior  most male  descendant  in  line  of succession  (of  Wakif-Mutawalli) and  then  holding  an  office  of Mutawalli  will  be  the  Chief Mutawalli.”   

44. We find that in the declaration dated 02.07.1973, in the first

line there is a full stop after the word “mutawalli” and thereafter, new

line  starts.  But  in  the  1973  Deed  (Annexure  P-1),  the  full  stop  is

missing.  It  appears  to be an inadvertent  omission as the Deed  as

amended in the year 1973 in the absence of full stop is not coherent

and appears to be incomplete.  

45. The well-known principle of interpretation of document is that

one line cannot be taken out of context.  It is a cumulative reading of

entire  document which would lead to one conclusion or  the other.

Some of the judgments relevant for determining as to the principle of

interpretation of documents are delineated hereinafter.  One of the

judgments  relating  to  the  interpretation  of  documents  is  Delhi

Development Authority v. Durga Chand Kaushish13.  It was held

that the meaning of the document or of a particular part of it is to be

sought for in the document itself. The Court held as under:-

“19. Both  sides  have  relied  upon  certain passages  in Odgers' “Construction  of  Deeds  and Statutes” (5th ed. 1967). There (at pages 28-29), the First General Rule of Interpretation formulated

13 (1973) 2 SCC 825

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is:  “The  meaning  of  the  document  or  of  a particular part of it is therefore to be sought for in the  document  itself”.  That  is,  undoubtedly,  the primary rule of construction to which Sections 90 to  94  of  the  Indian  Evidence  Act  give  statutory recognition  and  effect,  with  certain  exceptions contained  in  Sections  95  to  98  of  the  Act.  Of course,  “the  document”  means  “the  document” read as a whole and not piecemeal.

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

Lord  Wensleydale,  in  Monypenny  v. Monypenny14 said:

“the question is not what the parties  to a deed may have intended to do by  entering  into  that  deed,  but  what  is  the   

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

Brett, L.J., in Re Meredith, ex. p. Chick15  observed: “I  am  disposed  to  follow  the  rule  of

construction  which  was  laid  down  by  Lord Denman  and  Baron  Parke…………….They  said that  in  construing instruments you must  have regard,  not  to  the  presumed  intention  of  the parties, but to the meaning of the words which they have used.”

21. Another  rule  which  seems  to  us  to  be applicable  here  was  thus  stated  by  this  Court in Radha  Sunder  Dutta v. Mohd.  Jahadur  Rahim and Others16 :

“Now,  it  is  a  settled rule  of  interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will  render

14 (1861) 9 HLC 114, 146 15 (1879) 11 Ch D 731, 739 16 AIR 1959 SC 24, 29  

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one or more of them nugatory, it is the former that  should  be  adopted  on  the  principle expressed  in  the  maxim ‘ut  res  magis  valeat quam pereat’.”

46. Therefore, the entire 1948 Deed as amended in the year 1973

has to be read together to find out the process of appointment of

Chief Mutawalli.

47. The argument that the rule of primogeniture is explicit in the

amended clauses of the 1948 Wakf Deed, as the eldest son and after

his death his son has been given the preferential treatment than the

other  male  descendants,  is  not  tenable.  The  question  is  not

succession in the matter of immovable property but line of succession

for the management of Wakf.  

48. The Clause 1 of 1973 Deed is that the senior most among the

male  descendants  of  the  Wakif-Mutawalli  holding  an  office  of

Mutawalli will be the Chief Mutawalli. The Clause 3 of the same deed

is that the First Chief Mutawalli will be appointed by Wakif Mutawalli

thereafter the senior most male descendant in line of succession (of

Wakif Mutawalli) and then holding an office of Mutawalli will be the

Chief Mutawalli. Thus, at least two provisions of the 1973 Deed are

that the senior most male descendant in the line of  succession of

Wakif Mutawalli shall be Chief Mutawalli.  

49. The argument that the constitution of the Board of Mutawallis

on 04.07.1995 negates the argument raised by the Appellant that the

senior  most  male  descendant  has  to  be  the  Chief  Mutawalli  and

33

second in line as Nazir (Secretary).  No doubt in the constitution of

the Board on 04.07.1995, the second senior most male descendant

was not nominated as Nazir (Secretary) but such fact alone will not

negate  the  various  provisions  of  the  document  which  support  the

contention raised by the Appellant that it  is  the senior most male

descendant who shall be the Chief Mutawalli.  May be, Abdul Majeed

was nominated as Secretary of the Board keeping in view his age and

educational qualifications but such action will not negate cumulative

reading of the 1973 Deed.  

50. The action of the Wakif Mutawalli in nominating the senior most

male descendant Abdul Mueed and his younger son-the Appellant as

Mutawallis  in  terms  of  1948  Deed  shows  that  his  both  lines  of

successors were treated equally. After the composition of the Board of

Management  was  increased  to  five  after  amendment  in  the  year

1973, the Wakif Mutawalli appointed Abdul Majeed eldest son of the

Abdul Mueed (born on 23.12.1969) and Hamed Ahmed eldest son of

the Appellant (born on 25.03.1977) on 30.05.1995 as Mutawallis. On

that  day,  Asad  Mueed  (born  on  1.09.1973)  younger  son  of  Abdul

Mueed  but  older  in  age  than  the  Hamed  Ahmed  was  not  made

Mutawalli.  It  was  only  on 17.04.2000 i.e.  after  the death  of  Wakif

Mutawalli, he was made the fifth Mutawalli. If the line of management

has  to  be  in  the  hands  of  senior  most  male  descendant  of  Abdul

Hamid,  the  Wakif  Mutawalli  should  have  appointed  Asad  Mueed

instead of Hamed Ahmed in the year 1995.

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51. 1973 Deed is not a new document but the amended 1948 Deed

by Wakif Mutawalli from time to time.   Since, the Board of Trustees

was contemplated to be five Mutawallis including Wakif Mutawalli or

Chief  Mutawalli,  therefore,  the  induction  of  grandsons  was  not  in

order of date of birth but keeping in view the representations to both

sons of the Wakif Mutawalli. Therefore, the 1948 Deed as amended

does not show the applicability of principal of rule of primogeniture

but equal representation to the heirs of both sons of Wakif Mutawalli.  

52. The  judgment  of  Division  Bench  of  Madras  High  Court  in

Secretary  of  State  for  India  (supra) is  consequent  to  the

judgment  of  Full  Bench reported as  The Secretary of  State for

India in Council vs. Syed Ahmad Badsha Sahib Bahadur17. The

Full Bench was examining the applicability of principle of res judicata

in view of findings recorded in an earlier suit. It was held by the Full

Bench that decision in the previous suit is not conclusive but is only

evidence and it is open to the plaintiff to establish his title as against

the Government.  Consequent to the opinion of  the Full  Bench, the

appeal was taken up for hearing on 09.05.1921. It was consequent to

the opinion of the Full Bench; the appeal was taken up for hearing on

09.05.1921.  

53. The  Division  Bench  held  that  plaintiff  has  proved  that  he  is

lawful successor by heredity right as the office cannot be enjoyed by

several  heirs  in  common,  therefore,  succession  must  be  by  lineal

primogeniture. The said order does not support the argument raised

17 (1921) 14 L.W. 128 (F.B.)

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by the respondent as it is not a single heir who is holder of the office.

In fact, the Wakif Mutawalli has constituted a Board of five Mutawallis.

Therefore, it is a body of Mutawallis which has been vested with the

right of management of Hamdard and senior most male descendant

amongst them contemplated to be Chief Mutawalli.  

54. The argument that there is delay and laches on the part of the

Appellant to dispute the existing mechanism of the management is

again not tenable. The entire argument is based upon the constitution

of the Board on 04.07.1995. Mere failure to dispute the constitution of

Board would not mean that the 1948 Deed or 1973 Deed is rendered

otiose.  The constitution  of  the  Board  by  the  Wakif  Mutawalli  is  in

relation to the requirements of the Hamdard to carry out the functions

of  the  Board  but  that  does  not  rewrite  the  Rule  of  Succession

contemplated after amendments in 1948 Deed in the year 1973.   

55. The argument that the Appellant is involved in criminal cases is

again  not  relevant  at  this  stage.  1973  Deed  provided  for

disqualification  of  conviction  in  criminal  case  involving  moral

turpitude.   None  of  the  criminal  prosecution  launched against  the

Appellant  have  ended  up  in  conviction,  therefore,  there  is  no

disqualification attached to the Appellant at this stage.  

56. The  grant  of  mandatory  injunction  is  not  prohibited  even  in

Samir Narain Bhojwani case (supra). It has held that unless clear

and prima facie material justifies a finding that status quo has been

36

altered by one of the parties the order in mandatory injunction can be

given.  

57. The ad interim mandatory injunction, is to be granted not at the

asking but on strong circumstance so that to protect the rights and

interest of  the parties so as not  to frustrate their  rights regarding

mandatory  injunction.  In  Deoraj  vs.  State of  Maharashtra and

Others18, this Court held that Court would grant such an interim relief

only if it is satisfied that withholding of it would prick the conscience

of  the  Court  and  do  violence  to  the  sense  of  justice,  resulting  in

injustice being perpetuated throughout the hearing, and at the end

the  Court  would  not  be  able  to  vindicate  the  cause  of

justice. Therefore,  in  appropriate  case,  ad-interim  injunction  in

mandatory form can be granted. The Court held as under:-

“12. Situations emerge where the granting of  an interim  relief  would  tantamount  to  granting  the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for,  by  the  time  the  main  matter  comes  up  for hearing there would be nothing left to be allowed as relief to the petitioner though all  the findings may be in his favour. In such cases the availability of a very strong prima facie case — of a standard much  higher  than  just  prima  facie  case,  the considerations  of  balance  of  convenience  and irreparable injury forcefully  tilting the balance of the  case  totally  in  favour  of  the  applicant  may persuade  the  court  to  grant  an  interim  relief though it amounts to granting the final relief itself. Of  course,  such  would  be  rare  and  exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense  of  justice,  resulting  in  injustice  being

18 (2004) 4 SCC 697

37

perpetuated  throughout  the  hearing,  and  at  the end the court would not be able to vindicate the cause  of  justice.  Obviously  such  would  be  rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.”

58. The argument that  under  Order XXXIX Rules  1 and 2  of  the

Code,  the  Court  has  the  jurisdiction  to  maintain  the  status  of  the

parties on the date of filing of the suit or on the date of passing of the

order but cannot direct the parties to do something which was not in

existence at the time of  filing of  the suit,  is  not a general  rule of

universal  application.  The  nature  of  the  orders  claimed  by  the

Appellant are not passed ordinarily in a routine manner as the Plaintiff

is required to have a case which should be of higher standard than

mere prima facie case. But in view of the agreement between the

parties,  as  recorded  by  the  Division  Bench  in  an  earlier  round  of

litigation the primary question was agreed to be that who is to act as

Chief Mutawalli. Both learned Single Judge and the Division Bench has

examined  such  question  only.  Even,  before  this  Court,  the  parties

have  argued  primarily  on  the  question  as  to  who  shall  be  Chief

Mutawalli.  Therefore,  a  prima-facie  opinion  would  lead  to

consequential order in respect of management of the affairs of the

Hamdard.

59. Thus, in view of above the appeal is allowed. The order passed

by learned Division Bench on 27.11.2018 is set aside and that of the

38

order of learned Single Bench on 25.10.2017 is restored. The parties

will additionally continue with the arrangements arrived at in respect

of the management of the Hamdard in terms of the resolution dated

28.04.2015.

60. It is needless to say that decisions of the suits shall be on the

basis of evidence to be led by the parties as the present order is in

the context of deciding ad interim injunction application only.  

61. Keeping in view the nature of disputes and the evidence to be

led, we further order that an endeavour shall be made to decide the

suit expeditiously by granting maximum period of three months to

each of two sets of parties to conclude their respective evidence so

that an early decision is arrived at to finally conclude the first stage of

disputes between the parties.

……..….………………………………J. (UDAY UMESH LALIT)

….………..…………………………..J.     (HEMANT GUPTA)

New Delhi April 3, 2019.

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