REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9586 OF 2010

ALIYATHAMMUDA BEETHATHEBIYYAPPURA  

POOKOYA & ANR.      .....Appellants

Versus

PATTAKAL CHERIYAKOYA  & ORS.           .....Respondents

With

CIVIL APPEAL NO. 9588 OF 2010

CIVIL APPEAL NO. 9587 OF 2010

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

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.

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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

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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

(sermon­givers) 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 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 1966­1972. The president of

such committee from 1966­1972 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,

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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

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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 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

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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 re­appreciating 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 brother­in­law.

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According to the appellants, it was purposefully written to

support the respondents’ case. Reliance was also placed upon Ex

B8 and Ex B9 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 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

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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.  

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 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 Ex A3, 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

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

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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

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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 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,

11

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 re­appraise 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.

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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 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

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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. The respondents themselves are claiming the office

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of  mutawalli  as a customary right, not as a proprietary right. It

has  even been admitted by learned 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. 15. We would now like to address the appellants’ contention

that the materials adduced by the respondents to show that they

have continuously held the office of  mutawalli  should not have

been relied upon by the High Court, as they were not

contemporary  and were fictitious in  nature.  We  find  ourselves

unable to agree  with this contention for the reasons laid out

below.   We have gone through the material which the High Court

has relied upon to grant the respondents’ claim. The first is  Ex

A36,  A Short  Account of the Laccadive  Islands and Minicoy,  by

R.H. Ellis, published in the year 1924. Ellis was at that time the

Collector  for the territory.  The book mentions on  page 16  that

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Saint Ubaidulla was regarded as the first musaliyar (proselytizer)

in the area, and his descendants till 1920 held the office of Kazi of

Andrott Island. The second  is a note  prepared  in 1977 by the

Gazetteer for the Lakshadweep  islands.  Though  this  document

was not marked as an exhibit, counsel for the appellants stated

that it had nevertheless been placed and relied upon before the

Tribunal and the High Court. This publication on page 44 notes

that Ubaidulla was the first musaliyar in Andrott and his grave is

enshrined  within the  Andrott  mosque  and regarded  with  deep

veneration.     The High Court also noted the observation in the book

Deepolpathy  (published  in 1960) (Ex A35) that  the respondent

Pattakal family was descended from Saint Ubaidulla, who was the

first Kazi of the mosque, and that members of the Pattakal family

were its traditional Kazis, and continued to be so at the time of

writing. The High Court also appreciated an entry in the

Encyclopedia Britannica (edition unspecified), as well as certain

remarks in the Arabic book  Futhuhathul Jesair  (Ex A37), to the

same effect.

16

 We agree with the opinion of the High Court that since

this issue relates to a  mosque constructed  almost  1300­1400

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 Ubaidulla was the

first  musaliyar  in Andrott and is buried in the Andrott mosque.

The  Gazetteer, as  well as the then  Collector R.H. Ellis, gave

credence to this account in spite of inaccuracies relating to the

date of conversion of the inhabitants.    It is important to note at this stage that 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

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of the fact­in­issue (see 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  Futhuhathul Jesair  (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,

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we disagree with the appellants’ contention that these materials

are legendary or mythological in nature.   The appellants,  on the other hand, have not produced

any 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, we find 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.  16. It  now remains to be seen whether  the material relied

upon by the High Court was sufficient to establish a customary

right to the office of  mutawalli  in favour of the respondents. We

would like to reiterate at this stage that 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.  17. At the outset, it is pertinent to note that Muslim law does

not recognize an inherent right of succession to the office of

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mutawalli. In Atimannessa Bibi v. Abdul Sobhan, (1916) 43 Cal

467, the  High  Court  of  Calcutta laid  down  the  proposition  as

follows: “…though a descendant of the founder has a preferential claim to the office of  mutawalli, he does not become mutawalli by right of inheritance but has to be appointed such by the “Qadi”  who  may be supersede him if he is not qualified.”

 An almost identical position was taken by the High Court

of Bombay in In Re Mahomed Haji Haroon Kadwani, ILR (1935)

59  Bom 424. Similarly, the  High  Court of  Calcutta in  Bebee

Syedun  v.  Syed Allah Ahmad, W.R. 1864, 327 held that

hereditary succession is extremely unlikely in offices in

Mohammedan religious endowments. 18. 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.

In this respect, we may refer to the following discussion by S.A.

Khader in Law of Wakfs (1999, page 33): “Hereditary right to the office of mutawalli:  Muslim law does  not recognise  any right  of inheritance  or rule of hereditary succession to the office of mutawalli. There are two exceptions to this principle:

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(1)  Where the founder  has laid  down  the rule  of hereditary succession to the office in which case the rule has to be adhered to, and

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

 A similar observation has been made by Mulla  in

Principles of  Mahomedan  Law  (21st  edn., 2017, Prof. Iqbal  Ali

Khan ed.) (for short “Mulla”) on page 253:  “The Mahomedan law does not recognize any right of inheritance to the office of mutawalli. But the office may become hereditary by custom, in which case, the custom should be followed.” (emphasis supplied)

19. We have also given due consideration to several

judgments of various High Courts which appear to support the

above observations, inasmuch as they recognise that an exception

can be made to  the general  rule against hereditary succession

and lay down certain principles in this regard for proving such an

exception.   In  Shah Gulam Rahumtulla Sahib  v.  Mahommed

Akbar Sahib, 8 Mad. H.C. Rep. 63 (1875), the question before

the High Court was whether the office of the custodian of a waqf

could devolve through primogeniture.  The Court opined in this

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case that in cases of succession to the office of the custodian of a

waqf, succession would be determined in terms of the rules

established by the founder of the waqf, which could be inferred

from evidence of usage.   Another leading precedent in this regard is Phatmabi v.

Haji A. Musa Sahib, (1915) 38 Mad. 491. In this case, an heir of

the previous mutawalli laid claim to the office through hereditary

devolution. In this backdrop, the High Court of Madras observed

as follows on page 494:

“Where there  has  been  a  series  of appointments  of Mutawallis, it is generally assumed that the appointments have been valid, which implies that such appointments  have  been made  in  accordance with the terms of the original dedication  relating to the mode in which the successive appointments have to be made.” (emphasis supplied)

On page 495 it was further observed:

“The law does not directly empower the Mutawalli of every waqf to appoint his successor but if in regard to any particular waqf it is proved that the Mutawallis have been in the practice of nominating their successors, it is assumed that the  practice  had  a lawful  origin and was  founded on some provisions contained in the waqfnama or some oral directions given by the  waqif empowering the  Mutawallis to nominate their successors. Provisions in the waqfnama empowering the  Mutawallis to  nominate

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their successors are so usual that it would perhaps be representing the present state of authorities if it were said  that  the Courts  assume the existence of such a provision in the dedication, unless the contrary is proved… It will be seen therefore that  a claim based on the allegation either that the office is hereditary or that the Mutawalli nominated the claimant as his successor must ultimately have reference to the actual or the presumed directions of the waqif at the time when the dedication was made.” (emphasis supplied)

The above observations of the Court indicate that 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.  However, in the above decision, the Court also observed

that the standard of proof in respect of such a custom would be

stricter in the case of a public waqf than for a waqf whose object

was to provide for the  maintenance of the founder’s family.

Hence, the High Court in the said matter of  Phatmabi  rejected

the claim of Phatmabi on the ground that she had only been able

to show three successive appointments from her family, and there

was nothing to show such persons had succeeded as a matter of

right of inheritance.  

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Similarly, in Kalandar Batcha Sahib v. Jailani Sahib,

AIR 1930 Mad 554, the plaintiff claimed a right to the office of the

trustee, being the closest male heir of the predecessor. The High

Court of Madras held that while there was no absolute right to be

appointed as a hereditary trustee under Mahomedan law, when

the founder intended the position of trustee to be hereditary, such

fact should be considered in the appointment of trustees, unless

there were strong reasons for doing otherwise. In this case, it was

found that the history of devolution of the trust, from the original

founder of the trust onwards, showed that the trustee was always

appointed from the founder’s family, and hence the office of the

trustee was to be regarded as hereditary.  Accordingly,  the suit

was decreed. 20. It is also important to note that 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.    In  Atimannessa  (supra) and  In Re  Mahomed Haji

(supra),  since the claimants did not plead the existence of a

24

custom  of hereditary succession, the Court did not have an

occasion to rule on the aspect, and hence both the decisions are

silent in this regard. In Bebee Syedun (supra), while it was held

that in the absence of sufficient evidence of a custom by descent,

there would be a presumption against hereditary succession to

the office of mutawalli, crucially, the Court did not find that such

a custom could not exist at all. Rather, the claim was rejected as

the plaintiff had not gone back far enough to establish a custom,

as he had only shown three generations of succession to the office

of mutawalli. 21. Finally, 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, which states

that:

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

25

22. It  can be  concluded  from the  above  discussion  that  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.  

23. We may now consider what the principles governing the

establishment of a custom under Muslim law are. It is a settled

position of  law that a custom in order to be  legal and binding

must be certain, reasonable and acted upon in practice for a long

period with such invariability and continuity that it has become

the established governing rule in a community by common

consent. It is equally settled that it is incumbent upon the party

relying on the custom to plead and prove it.  

26

 In this regard,  we may  fruitfully refer to the following

observations from Fyzee’s Outlines of Muhammedan Law (5th edn.,

2008, Prof. Tahir Mahmood ed., p. 49) (for short “Fyzee”):

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

The leading case with respect to the requirements of

proving a custom is the decision of the Privy Council in H.H. Mir

Abdul  Hussein  Khan  v.  Bibi  Sona Dero,  AIR  1917 PC 181.

Relying upon its previous decision in  Ramalakshmi Ammal  v.

Sivanantha Perumal Sethurayar, (1871­72) 14 Moo IA 570, the

Council observed as follows:  “It is of the essence of special usages modifying the ordinary law of succession that  they should be ancient and invariable: and it is further essential that they should  be established to be so  by clear and unambiguous evidence. It is only by means of such evidence that the  Courts can be assured of their existence, and that they  possess the conditions  of antiquity and certainty on which alone their legal title to recognition depends.” (emphasis supplied)

27

24. Thus, we may conclude that while no person can claim

the office of  mutawalli  merely 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.

25. Whether the aforementioned requirements have been

satisfied in the present case or not is to be considered.  

 As far as the requirement of specific pleadings is

concerned, we find that the appellants’ argument that the

respondents have not specifically pleaded their customary right is

patently incorrect, insofar as the respondents in  paragraph 2 of

their plaint in O.S. No. 1/1998 have specifically pleaded that the

28

office of the mutawalli is vested in the Pattakal family ‘by virtue of

immemorial custom and usage.’  

26. Coming to the question of whether the respondents have

discharged the burden of proving a legal and binding custom in

their favour.  

 As  mentioned above, the Tribunal and the revisional

Court have, on facts, found that historical materials unanimously

establish that Saint Ubaidullawas the first  mutawalli  of the

mosque, which was constructed around the seventh century AD,

and his descendants continued to hold the post after his death.

 Additionally, the Tribunal and the High Court have taken

note of multiple documents placed on record by the respondents,

showing that the Pattakal family was  managing the  mosque

property in an unbroken chain of succession. These include, inter

alia,  Ex A1, a compromise petition dated 6.12.1892

acknowledging the rights of Pattakal Ahmed Khadiyar Koya in the

administration of the Jumah mosque,  Ex A2, another

compromise petition of the  year  1933 which refers to  Pattakal

Kunhikoya as the Kazi,  Ex A21, a complaint dated 22.03.1935

29

filed by the  mukri  (muezzin) of the  mosque against the then

mutawalli  Pattakal  Kunhikoya,  Ex A3­5  and  Ex A11,  showing

that Pattakal Koyammakoya was the mutawalli prior to his death

in 1981, Ex A6­9, consisting of demand notices and receipts for

annual contributions  made by the  mosque, which show that

Patakkal Pookoya Thangal was Pattakal Koyammakoya’s

successor from  1981 till his death in 1996, and  Ex  A17­20,

which prove that the present  mutawalli  is Respondent  No. 1

Patakkal Cheriyakoya. These documents establish that from 1892

to present, it is the respondents’ family members who have been

succeeding to the office of mutawalli continuously. Therefore, it is

proved that the practice of succession of the respondents to the

office of  mutawalli  of the Jumah mosque has been in existence

since antiquity, and is certain and invariable.

27.  It  may  now be  considered,  firstly,  whether the  alleged

intervention of third parties have led to breaches in the

invariability and continuity of the custom, through the statutory

appointment of a Kazi  in 1998 and the appointment of a non­

Pattakal Kazi in 1921 and 1923, and  secondly, whether the

30

respondents have themselves committed such breaches through

their predecessor’s participation in the committee formed in 1966,

and by entering into a compromise decree dated 16.02.1981.  

28. With respect to the contention pertaining to the

appointment of a Kazi in 1998, it is admitted that one Kunnasada

Hamzakoya was appointed as Kazi of Andrott  Island under the

Kazis Act, 1880. Previous to this appointment, the respondents

had challenged the government’s notification inviting applications

for the post before the High Court in  S.A. Thangal  (supra), on

the ground that their hereditary right to succession to the office of

Kazi would be abrogated by the statutory appointment, but their

petition was dismissed. It is on the basis of this judgment that

the government proceeded to appoint such Kazi.    As was rightly observed by the High Court, the Tribunal’s

finding that the Pattakal family had lost its vested right in the

office of  mutawalli,  based on the finding in  S.A. Thangal  that

they had no hereditary right to the office of Kazi of the mosque,

was based on a  wrong understanding of facts and law.  The

dictum laid down in S.A. Thangal, which was heavily relied upon

31

by the appellants during their arguments before this Court, will

not come to the aid of the appellants in this matter, inasmuch as

the said judgement was rendered in a different context. It is no

doubt true that in  S.A. Thangal, it was observed that the

petitioner therein (who  was  a  member  of the  Patakkal family)

could not claim that the position of Kazi was hereditary in nature,

particularly  after the  coming  into force of the  Kazis  Act,  1880

(which was made applicable to Lakshadweep in the year 1970).

However, the judgment also acknowledged that by virtue of

Section 4 of the Kazis Act, if the respondents were performing the

functions of  a traditional Kazi  prior to enforcement of  the Act,

they could continue to do so, notwithstanding the appointment of

another person as a Kazi under the Act. This is evident from the

operative portion of the judgement, which reads thus: “13. Therefore, the petitioner cannot claim that the position of Kazi is hereditary in nature. Even if the petitioner’s contention that he succeeds to the deceased Kazi, the position being hereditary in nature, is accepted, that will not prevent the Administration choosing a Kazi in terms of the Kazis Act.  Appointment of Kazi made under the Act shall not be deemed to prevent any person discharging any of the functions of the Kazi as per Section 4 of the said Act.” (emphasis supplied)

32

 The relevant section  in this regard,  Section 4(c)  of the

Kazis Act, 1880 reads as follows:

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

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

 Hence,  even as per the decision  in  S.A. Thangal, the

respondents could discharge some of the functions of a

traditional Kazi despite the appointment of a different person as a

Kazi under the Kazis Act.       From  the  aforementioned  discussion,  we  can  conclude

that the appellants’ contention that the post of Kazi and

mutawalli was the same in Lakshadweep islands and therefore if

the respondents  have lost the right to  one  office, they  cannot

claim the other is only partly correct. We say so because, it is true

that prior to the enforcement of the Wakf Act, 1954 in the year

1968 in the Lakshadweep islands, the word ‘mutawalli’ was not in

use on the islands, and the word  ‘Kazi’  encompassed a person

functioning as mutawalli of a mosque. This has also been noted

33

by the Tribunal in its judgement. However it is incorrect to say

that the  person who was working  as  mutawalli/Kazi loses the

post of mutawalli also after he lost the post of Kazi.  The office of Kazi disputed in S.A. Thangal is a statutory

appointment under the Kazis Act, 1880. It can be inferred that

after the enforcement of the Kazis Act in 1970, a legal distinction

between the office of  mutawalli  and statutory office of Kazi came

into play in the Lakshadweep islands. The Kazis Act pertains to

the appointment of a Kazi for a local area where his presence may

be required for performing certain rites and ceremonies, whereas

the respondents in their plaint have clearly stated that they are

claiming the office of “mutawalli­cum­Traditional Kazi” of the

Jumah mosque specifically. They are not contesting the decision

in S.A. Thangal or seeking appointment to the statutory post of

Kazi.  Therefore, we find that the High Court has rightly

concluded that at the time of the institution of OS No. 1/1998,

the respondents were within their rights to seek the relief of the

office of mutawalli even after their claim to the office of Kazi was

defeated. Further, given the distinction between a statutory Kazi

34

and a  mutawalli, the appointment of Kunnasada Hamzakoya in

1998 will not constitute a breach of the respondents’ custom in

respect of the office of mutawalli. We would like to emphasize that we have not been called

upon to decide whether the respondents have a customary right

to be the Kazi of the mosque, since the decision in S.A. Thangal

is not in challenge before us. Therefore, we desist from looking

any further into the matter.  29. The appellants’ argument that the respondents’ claim to

the office of  mutawalli  is defeated by the appointment of certain

third parties as Kazis in the 1920s, i.e. before the enforcement of

Kazis Act,1880 in the area, must also be considered in the light of

the above discussion.    The appellants have relied on  Ex B8  and  Ex B9  in this

respect.  Ex  B8  is letter of Kazi Sayedkoya dated 25.05.1921

informing Amin Kachery, Andrott that his uncle Attakoya Thangal

had been functioning as Kazi in his place while he was travelling,

and that Kazi Sayedkoya had subsequently resumed the post. Ex

B9  is the order of R.H. Ellis dated 12.02.1923 which inter alia

assigned one Shaikinteveedu Kunhikoya to  be  the  karnavar of

35

Andrott and one Kasmikoya to perform the functions of Kazi of

the  mosque.  The  appellants  claim  that these  documents  show

that the Pattakal family was not managing the mosque in that

period.  The respondents have not challenged the validity of the

above documents. In  fact,  we  find that in  Ex B5, it  has been

admitted by Pattakkal Koyammakoya (the respondents’

predecessor), who was the plaintiff in O.S. No. 10/1974, in which

the compromise decree dated 16.02.1981 was passed,  that the

Shaikinteveedu family, to which the Kazis appointed in 1921 and

1923 belonged, does not belong to the Pattakkal  tharawad.  He

further admitted that Sayedkoya was appointed by the people as

Kazi due to hostility towards the Pattakkal family, and the

government had accepted such appointment.  After  Sayedkoya’s

tenure expired,  nobody from Sayedkoya’s  family was appointed

and all the succeeding Kazis were from the Pattakal family. 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

36

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 (see the decisions of the Madras High

Court in  Muniandi Kone  v.  Sri Ramanatha Sethupathi,  AIR

1982 Madras 170, and  K.A Srinivasa Ayyangar v.  S.

Ramanujachariar, 1941 (1) M.L.J 322). 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 Kazi­cum­

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.

37

30. We must now consider whether the appellants have been

able to prove that the respondents had themselves breached their

customary right  such that  the custom was abrogated.  Learned

counsel for the appellants firstly drew our attention to Ex B5, the

deposition of Patakkal Koyammakoya, plaintiff in O.S. No.

10/1974, mentioned  supra.  He admitted that a committee was

formed on 25.11.1966, composed of 14 members from 4 localities

of Andrott Island, of which he was President. Hence, the

appellants contend that the respondents cannot claim that it was

just a repair committee and not for the  management of the

mosque.    It is true that in Ex B5, Patakkal Koyammakoya admitted

to the formation of the committee in 1966.  However, he had

earlier categorically deposed that the committee was for

overseeing the repair and  maintenance work of the  mosque.

Moreover, in his cross­examination, he stated that though he was

continuously elected as President of the committee, he could not

remember whether a committee was elected after 1972. He also

stated that there was no committee on the date of deposition (i.e.

30.04.1977). Therefore, it is evident that the committee was only

38

in existence from 1966 to 1972 and that too only to advise the

mutawalli  in relation to the repair and maintenance of the

mosque. It must also be noted that both the Tribunal and the

High Court have found that the appellants have not produced any

documentary evidence to controvert the deposition in Ex B5, and

to show that a committee was functioning for the management of

the mosque after 1972. We find ourselves in agreement with the

said finding.    On  the  other  hand,  we find  merit in the respondents’

submission that the 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, mentioned  supra,  evidence that the

office  of  mutawalli  was customarily  vested  in  the  respondents,

and not in the committee, during the period to which 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

39

of the Evidence Act, as mentioned in our discussion  supra

pertaining to the relevance of the Gazetteer’s Report of 1977.   Further, it must be noted that the List of  Wakfs is

published only after the Survey Commissioner has conducted a

preliminary enquiry into the waqf property and after the

Commissioner’s report is examined by the  Waqf  Board  under

Sections 4 and 5 of the Wakf Act, 1954. 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

40

as the mutawalli  of the Jumah mosque is a relevant fact for the

purpose of deciding this dispute.  31. It is apposite to note that the Tribunal found that there

was a discrepancy insofar as the List of Wakfs mentioned that the

Pattakal  mutawalli  was under the supervision of Amins and

Karanavans, whereas the Register entry only mentioned Pattakal

Koyammakoya as the  mutawalli. As mentioned  supra, the

appellants have also claimed that the  mosque was  managed

under the ‘Amin and Karanavan’ system. In this regard, it must

be noted that while evaluating the respondents’ claim to a

customary right to the office of mutawalli, the social conditions in

which this right was exercised must be taken into account. The

following   observations of  Fyzee (5th  edn., 2008) on page 50 are

relevant in this respect:

“As to the evidence of custom, specific instances of its acceptance as law may be proved; such evidence may be supplemented by general evidence; previous decisions in which the custom has been accepted as binding  are important  pieces  of evidence  but their reasoning may not be binding; the court must scrutinize the custom set up jealously and  must be careful not to be misled by pitfalls due to unfamiliarity with social conditions.”

41

We find it relevant to discuss what the entry in the List of

Waqfs  showing  that the  mosque was under the  supervision of

Amins and Karanavans precisely means, since this was the

broader social backdrop in which the respondents’ custom

existed.  A  perusal  of the “Report  of the  Commissioner for the

Scheduled Castes and Scheduled Tribes” for the year 1953, on

page 284, reveals that the Amin is the executive officer appointed

by the government for the Lakshadweep islands. The Karanavans

are the  heads  of  different local families  who  are  appointed to

assist the Amin in trying civil and criminal cases. Hence, these

are executive authorities which are separate from the mutawalli of

a mosque. The Tribunal itself has noted in its judgement that the

Jumah mosque may have been under the supervision of the then

administrative authorities as it was a very important mosque on

Andrott Island, but the Amins and Karanavans were not directly

managing the affairs of the mosque.   Therefore, we find that the

mention of the ‘Amin and Karanavan’ system in the List of Waqfs

will not weaken the respondents’ argument based upon reliance

on such List.  

42

Though it is possible that the mutawalli belonging to the

respondents’ family may have been advised by other authorities,

this does not mean the respondents per se did not hold the office

of  mutawalli. Hence we are unable to accept the appellants’

argument that the  respondent’s  customary right  was breached

due to the presence of  advisory authorities such as the Amins

and  Karanavans  or the committee formed in  1966.  Rather, it

strengthens the argument in favour of the respondents, to show

that notwithstanding the changes in the administrative

mechanism of Andrott Island over the years, which is inevitable in

any territory, it is the Patakkal family which has been at the helm

of affairs at the mosque. 32. We also find ourselves unable to agree with the

contention of the  appellants that the  violations of  Order  XXIII

Rule 3B, CPC while passing the compromise decree dated

16.02.1981 in O.S. No. 10/1974 are merely procedural and do

not vitiate the decree, and that the decree should therefore be

regarded as proof of breach of custom.   Under Order I Rule 8, CPC, which pertains to

representative  suits,  a  person may sue or  defend on behalf  of

43

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.   It is pertinent to note that it is not clear whether the suit

in O.S. No. 10/1974 was filed under Order I Rule 8 or not. Even

assuming  that  we  accept the  respondents’ contention  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. Hence the compromise

44

decree, if upheld, would prejudice the family’s customary right to

the office of mutawalli and the terms thereof would become final

and binding by virtue of Section 96(3), CPC. Thus, it is clear that

the two conditions mentioned supra  in relation to representative

suits have to be complied with if the compromise decree passed in

O.S. No. 10/1974 is to be held valid.   The Tribunal as well as the High Court, on considering

the compromise decree passed and the records thereof, have on

facts concluded that the parties to the decree did not obtain leave

of the court and did not give notice to other persons who were

interested  in  the suit, i.e.,  members of the Pattakal family,  as

required under Order XXIII Rule 3B. The appellants before this

court  have  also  not  disputed  that the  compromise  decree  was

without leave of the court and without notice to interested family

members. As is evident from the foregoing discussion, such

violations of  Order XXII  Rule 3­B 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

45

conditions required under Order XXIII Rule 3B were not complied

with, the compromise decree was void.   Further, we find that 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.

Hence, we find ourselves in agreement with the findings of the

lower Courts that the compromise decree was illegal and void.    Moreover,  as rightly argued by  learned counsel for the

respondents by placing reliance on  Sardar Bibi  (supra),  which

has also been favourably cited by Mulla (21st edn., 2017) on page

14, 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

46

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.  33. Thus,  we are of the view that  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.   34. Learned counsel for the appellants argued that even if it

is proved that the respondents  have a customary right, such

custom violates public policy and is unreasonable, as one family

should not be allowed to monopolize the management of a public

waqf. We are unable to agree with this contention. 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

47

powers to the Waqf Board for supervising the administration of a

waqf. For example, Section 64 of the Waqf Act, 1995 provides for

the removal of the mutawalli, and Section 69 of the Act deals with

the power of the Board to frame a scheme for the administration

of the waqf under certain contingencies.   We also find it relevant to refer to the following

observations of the Bombay High Court in In re Mahomed Haji

Haroon (supra), which were made in the context of a waqf created

for charitable purposes: “In accordance with generally prevalent Muslim sentiments,—and  the law of  waqifs supports these sentiments,—members of the family of the waqif ought to be given preference in appointment as trustees…I do not, therefore (in spite of the deference I should like to show to the Advocate General's point that unless outsiders are appointed as trustees the trust  may become entirely  a  family  affair)  consider that there must necessarily be any outsider amongst the trustees. On the contrary I think the Muslim law does not dread the management of waqifs being retained in the family of the waqif. It disapproves of the introduction of an outsider in the administration at least of such a trust as is before me, unless the members of the waqif's family show their unfitness to be trustees. I take this opportunity, however, of observing that though descendants of the waqif are favoured by the Court, when appointing a mutawalli, this does not mean that they have a hereditary right to be  mutawallis, still less that their descent  will protect them from removal if there is any

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mismanagement. The trustees that are now being appointed ought to be particularly careful in the administration of  the trust.  They should utilize the funds for such purposes and in such a manner that there may not be the least ground for any aspersion being cast against them.  No suspicions should  be allowed to arise that the funds are not being utilized for the most suitable and proper objects. Every portion of the funds should be manifestly put to uses entirely  in accordance with the principles of Islam, which is a progressive and enlightened religion.”

As  noted in the  above  decision, even if the  mutawalli

belongs to the family of the waqif, he is not immune from removal

in the case of mismanagement of the waqf, and must administer

the waqf in accordance with the principles of common prudence

and  probity.  Having regard to the  above  principle,  and  to the

provisions of  the Waqf Act which take care of contingencies  in

case of mismanagement, etc., it cannot be said that the

respondents’ exercise of customary right to the office of mutawalli

is unreasonable or violates public policy.  35. In light of the foregoing discussion, we have no hesitation

to reach the conclusion that 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

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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. Adopting the principle enunciated in  Phatmabi  and

Kalandar Sahib  (supra), we find that 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 mentioned supra for proving a

custom of hereditary succession to the office of mutawalli.  36. Therefore, the appeals are dismissed and the impugned

judgment and order is confirmed.  

……..……………………………….. J. (MOHAN M. SHANTANAGOUDAR)

………………………………. J. (AJAY RASTOGI)

New Delhi; August 1, 2019.

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