HAMMAD AHMED versus ABDUL MAJEED & ORS.

Citation: [2019] 6 S.C.R. 402 · Decided: 03-04-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 7 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
402
SUPREME COURT REPORTS
[2019] 6 S.C.R.
HAMMAD AHMED
v.
                   ABDUL MAJEED & ORS.
(Civil Appeal Nos. 3382-3383 of 2019)
 APRIL 03, 2019
  [UDAY UMESH LALIT AND HEMANT GUPTA, JJ.]
Succession – To the Office of Chief Mutawalli – Rule of
Primogeniture – When not applicable – One ‘HAM’ started the
Hamdard Dawakhana as sole proprietor – Died leaving behind his
wife and two sons, ‘AH’ and ‘MS’ – These three executed Deed in
1948 to manage the affairs of Hamdard – ‘AH’ became the sole
surviving Wakif Mutawalli in terms of the 1948 Deed – In 1964, the
Wakif Mutawalli appointed his two sons ‘AM’ and ‘HA’-appellant
as Mutawallis – Wakif Mutawalli issued various declarations from
time to time for working of Hamdard – On the basis of such
declarations, a comprehensive declaration was issued in 1973
amending the 1948 Deed – Wakif Mutawalli died – ‘AM’ became
the Chief Mutawalli –’AM’ died – Dispute between the parties as to
who should discharge the duties of Chief Mutawalli of now Hamdard
Laboratories (India) – Appellant filed suit inter alia for declaration
that respondent no.1 is no longer Mutawalli under the 1948 Deed
– Respondent No.2 also filed suit inter alia seeking removal of the
appellant and his son as Mutawallis – Respondent nos.1 & 2 are
sons of ‘AM’, elder brother of the appellant – Respondent No.2’s
application u/Or.XXXIX, r.1&2 was dismissed while that of the
appellant was allowed by the Single Judge holding that the senior-
most male descendant in the line of succession of Wakif Mutawalli
is prima facie entitled to be Chief Mutawalli– Division Bench
applying the rule of primogeniture set aside the order holding that
after the death of the Chief Mutawalli, the senior most male in his
line and also a Mutawalli is entitled to succeed to his office – Held:
Rule of primogeniture is not applicable to the Muslims as per the
Personal Law – Entire 1948 Deed as amended in the year 1973 has
to be read together to find out the process of appointment of Chief
Mutawalli – At least two provisions of the 1973 Deed are that the
senior most male descendant in the line of succession of Wakif
[2019] 6 S.C.R. 402
 402
A
B
C
D
E
F
G
H
403
Mutawalli shall be Chief Mutawalli – Action of the Wakif Mutawalli
in nominating the senior most male descendant ‘AM’ and his younger
son-the appellant as Mutawallis in terms of the 1948 Deed shows
that his both lines of successors were treated equally – Since, the
Board of Trustees was contemplated to be five Mutawallis including
Wakif Mutawalli or Chief Mutawalli, therefore, the induction of
grandsons (Respondent Nos.1 & 2 and the sons of the appellant)
also was not in order of date of birth but keeping in view the
representations to both sons of the Wakif Mutawalli (‘AM’ and
‘HA’) – Therefore, the 1948 Deed as amended does not show the
applicability of rule of primogeniture but equal representation to
the heirs of both sons of Wakif Mutawalli – Order of the Division
Bench set aside and that of the Single Judge, restored – Code of
Civil Procedure, 1908 – Or.XXXIX, rr.1&2 – Wakf Act, 1995 –
Principle of interpretation of document.
Code of Civil Procedure, 1908 – Or.XXXIX, rr.1&2 –Ad-interim
mandatory injunction – Grant of – Held: 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.
Allowing the appeals, the Court
HELD: 1.1 The order of Division Bench cannot be
sustained. 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. No 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
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
C

Excerpt shown. Read the full judgment & AI analysis in Lexace.