Case: HAMMAD AHMED Vs. ABDUL MAJEED

Bench reported as The Secretary of State for India in Council vs. Syed Ahmad Badsha Sahib Bahadur (1921) 14 L.W. 128 (F.B.) . 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 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 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 Others (2004) 4 SCC 697 , 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]37. We find that the order of Division Bench cannot be sustained.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.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.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).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.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.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.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.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.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.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.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.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 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.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 1995.1973 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.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 Bahadur (1921) 14 L.W. 128 (F.B.. 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.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 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.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.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.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 altered by one of the parties the order in mandatory injunction can be given.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.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.