Hammad Ahmed vs Abdul Majeed

3. The dispute between the parties at this stage is as to who should discharge the duties of Chief Mutawalli of Hamdard Laboratories (India)2 earlier known as Hamdard Dawakhana, after the 1 Code 2 Hamdard 1 death of previous undisputed Chief Mutawalli - Abdul Mueed on 19.03.2015.

4. The Appellant filed Civil Suit No. 211 of 2017 on 08.05.2017, whereas Respondent No. 2 filed Civil Suit No. 162 of 2017 on 29.03.2017. The suit of the Appellant is for declaration, prohibitory injunction and for other reliefs. The Appellant asserted that after death of Abdul Mueed, Chief Mutawalli on 19.03.2015, the Appellant being living senior most male direct successor of Wakif Mutawalli took over the Office of Chief Mutawalli on 20.03.2015 when an office order was issued to this effect by him. The Respondent Nos. 1 and 2 are the defendants in the suit filed by the Appellant. Such Respondents are sons of former Chief Mutawalli late Shri Abdul Mueed, elder brother of the Appellant. The Respondent No. 1 – Abdul Majeed also issued an office order on 23.03.2015, appointing himself as Chief Mutawalli. The Respondent No. 1 issued letters on the basis of such declaration on 23.03.2015 to various authorities including Banks. It is in this background; the Appellant has sought declaration that the Respondent No. 1 is no longer Mutawalli under the Wakf Deed 3 dated 28.08.1948 as amended from time to time on account of breach of his obligations under the said Deed and to issue a decree in nature of permanent injunction restraining Respondent No.1 to continue as Mutawalli of Hamdard. The Appellant also claimed that all decisions, orders issued by Respondent Nos. 1 and 2 jointly or severally after 20.03.2015 are null and void and of no effect. 3 Deed 2

6. On the other hand, Asad Mueed son of the previous Chief Mutawalli Abdul Mueed, sought removal of Appellant- Hammad Ahmed and his son Hamed Ahmed from the position of Mutawallis of Hamdard in the suit (Civil Suit No.162/2017) filed by him. The Defendant No. 4 in the said suit is Abdul Majeed, respondent No.1 herein, the elder son of the last undisputed Chief Mutawalli Abdul Mueed who died on 19.03.2015. The removal of the Appellant and Respondent No. 3 was sought inter alia on the ground of malfeasance and misfeasance of the affairs of Hamdard.

7. The learned Single Judge decided the Interlocutory Applications filed by the parties in their respective suits on 25.10.2017, whereby IA No. 4331 of 2017 filed by Respondent No. 2 in suit filed by him was dismissed, whereas, IA No. 5860 of 2017 filed by the Appellant was allowed inter-alia observing as under: -

10. Some facts leading to the present appeals are - Hakim Hafiz Abdul Majid started the business of Hamdard as a sole proprietor in the year 1906. He died on 22.06.1922 leaving behind his wife Mst. Rabea Begum and two sons, Haji Hakim Abdul Hamid and Hakim Mohd. Sayeed. These three executed a Deed on 28.08.1948 in order to manage the affairs of Hamdard. The Deed inter alia when translated in English recites as under:

13. The Appellant relies upon the declarations in the nature of amendments in the 1948 Deed carried on 02.07.1973 as to who 9 should manage the affairs of the Wakf after the Wakif Mutawalli. The relevant extracts from the declaration issued by the Wakif Mutawalli read as under:

Ayan. However, the Majlis-e-Ayan shall not interfere in the day to day administration of the Wakf. The rights and powers that have been reserved for exercise by the Majlis-e-Ayan shall be exercised by the said Majlis-e-Ayan only after the death of Wakif Mutawalli or when he ceases to be Mutawalli. This Majlis shall have a maximum of nine members nominated by Wakif Mutawalli including all the Mutawallis in office. The future vacancies will also be filled in by nomination by Wakif-Mutawalli in his life time and after his death by the members of the Majlis-e-Ayan from out of his heirs, legal representatives and all persons male or female who are entitled to a share in Khandani Income either in their own right or as rightful guardian of the minor beneficiaries. The Wakif Mutawalli after his ceasing to be Mutawalli and all the Mutwallis in office shall be ex-officio members of the Majlis-e-Ayan. They shall have all the rights and duties of the members of Majlis-e- Ayan including the right to vote.

xxx xxx xxx 42-A. Mr. Abdul Mueed and Mr. Hammad Ahmed, sons of Wakif Mutawalli Hakim Abdul Hameed, are nominated as his successors under the terms of this Deed. They are the two other Mutawallis of this Wakf appointed by the Wakif Mutawalli. They will act as Chief Mutawalli and Mutawalli respectively. They will be paid salaries for services rendered to the Wakf as fixed by the Wakif Mutawalli. This shall be charged to the profit and loss account of the Wakf. The salaries of other Mutawallis will be fixed by Wakif Mutawalli/Chief Mutawalli. The salary of subsequent Chief Mutawalli will be fixed by Majlis-e-Ayan.”

Mr. Abdul Majeed will be the Secretary of the Board of Mutawallis and he will issue the agenda and will record the minutes.

48. 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.

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.

59. Thus, in view of above the appeal is allowed. The order passed by learned Division Bench on 27.11.2018 is set aside and that of the 38 order of learned Single Bench on 25.10.2017 is restored. The parties will additionally continue with the arrangements arrived at in respect of the management of the Hamdard in terms of the resolution dated 28.04.2015.

60. It is needless to say that decisions of the suits shall be on the basis of evidence to be led by the parties as the present order is in the context of deciding ad interim injunction application only.

61. Keeping in view the nature of disputes and the evidence to be led, we further order that an endeavour shall be made to decide the suit expeditiously by granting maximum period of three months to each of two sets of parties to conclude their respective evidence so that an early decision is arrived at to finally conclude the first stage of disputes between the parties.