| Headnote |
Muslim Law – Succession – To the office of mutawalli – Exception to the general rule against hereditary succession – Dispute pertains to the office of mutawalli of the Andrott Jumah mosque situated in Lakshadweep – Respondents, seniormost members of the Pattakal family, claim to be the descendants of one Saint Ubaidulla, stated to have built the mosque and was its first mutawalli – They claim that by customary tradition, the office of the mutawalli of the mosque is vested with their family– Appellants, representatives of residents of the Andrott Island claim that the mosque was built by the inhabitants of the island and the respondents never had customary right to the office of mutawalli, and the right to select the mutawalli should vest with the people of the local area – Respondents filed suit before the Waqf Tribunal for declaration that the office of mutawalli of the mosque is vested with their family – Suit decreed – High Court on appeal remanded it back to the Tribunal – Suit dismissed – High Court decreed that the office of mutawalli was vested with the respondents by custom –Held: It cannot be said that the High Court exceeded the scope of its revisional jurisdiction – Historical materials corroborate that Ubaidulla was the first mutawalli of the mosque and that after his demise, his descendants, i.e. the Pattakal family, were holding the office of Kazi and managing the mosque as mutawallis turn by turn – Appellants have not produced any contrary historical opinion– Appellants could not establish that there was breach in the respondents’ customary right of holding the post of mutawalli due to the formation of the committee in 1966 which existed till 1972 or due to the compromise decree (passed in suit between the appellants’ and respondents’ predecessors, as per which the mosque was to be managed by the committee elected by local residents) which is declared as void – Muslim law does not recognize an inherent right of succession to the office of mutawalli – However, such a right may be shown on the basis of certain exceptions, which includes the creation of a custom to that effect – Respondents have been able to establish customary right to the office of mutawalli of the Jumah mosque, which is not unreasonable or opposed to public policy – Waqf Act, 1995 – ss. 3(i), 64, 69(2) and 83(9) – Evidence Act, 1872 – s.35, 45, 81 and 114 – Code of Civil Procedure, 1908 – Or. I, r.8 and Or. XXIII, r.3B – Wakf Act, 1954 – ss.4,5 and 60. Waqf Act, 1995 – s.83(9) – Revisional jurisdiction of the High Court against order of the Waqf Tribunal – Scope of – Discussed. Evidence Act, 1872 – ss.35, 45 and 81 – Gazette and contents thereof – Appreciation of – Held: Gazette is an official record evidencing public affairs, and its genuineness is presumed u/s.81– Moreover, u/s.35, an entry made by the Gazetteer in discharge of his official duty is a relevant fact – Any fact recorded by the Gazetteer may also be considered as expert opinion u/s.45 – Therefore, the contents of the Gazette can be taken into account to discover the historical materials contained therein, which the Court may consider in conjunction with other evidence and circumstances in adjudicating a dispute, even if it may not be conclusive evidence of the fact-in-issue. Code of Civil Procedure, 1908 – Or. I, r.8 and Or. XXIII, r.3B – Representative suit – Compromise decree – When void – Discussed. Customary Law – Claim as to a customary right to succeed to the office of mutawalli – Proof of – Held: A person claiming a customary right to succeed to the office of mutawalli would have to show that the waqif (founder of the waqf) intended for the office to devolve through a practice of hereditary succession – In the absence of any express directions in the waqfnama to this effect, the claimant would have to show that such practice has been in existence throughout the history of the trust, and not merely for a few generations – Burden of proof would be higher with respect to a public waqf, than a family trust – Muslim Law. |
