ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA & ANR. versus PATTAKAL CHERIYAKOYA & ORS.

Citation: [2019] 10 S.C.R. 961 · Decided: 01-08-2019 · Supreme Court of India · Bench: MOHAN M. SHANTANAGOUDAR · Disposal: Dismissed

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Judgment (excerpt)

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961
ALIYATHAMMUDA BEETHATHEBIYYAPPURA
POOKOYA & ANR.
  v.
PATTAKAL CHERIYAKOYA & ORS.
(Civil Appeal No.9586 of 2010)
AUGUST 01, 2019
[MOHAN M. SHANTANAGOUDAR AND
AJAY RASTOGI, JJ.]
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
[2019] 10 S.C.R. 961
961
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962
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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.
Dismissing the appeals, the Court
HELD: 1.1 Ordinarily, while revisional jurisdiction does not
entitle the High Court to interfere with all findings of fact recorded
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