Aliyathammuda Beethathebiyyappura ... vs Pattakal Cheriyakoya .

Interlocutory Application No. 93605 of 2018 in Civil Appeal No. 9586 of 2010 for deleting the names of appellant Nos. 3 and 4 and respondent No. 7 from the array of parties is allowed. 1

3. The present dispute pertains to the office of mutawalli of the Andrott Jumah mosque situated in Lakshadweep. The mosque is presently a public waqf registered with the Lakshadweep Waqf Board. The respondents herein are the seniormost male members of the different thavazhies (branches of descendants through the female line) of the Pattakal family. They claim to be the descendants of one Saint Ubaidulla, who is stated to have built the Andrott Jumah mosque, and who was its first mutawalli. Thus, they claim that by customary tradition, the office of the mutawalli of the mosque is vested with their family. It is their case that the members of the family choose the mutawalli 2 from amongst themselves, and Respondent No. 1 is functioning as the present mutawalli of the mosque.

4. It is also their common claim that a compromise decree was passed on 16.02.1981 in O.S. No. 10/1974 between the appellants’ predecessors and Pattakal Koyammakoya Thangal, as per which the mosque was to be managed by the committee elected by local residents. The appellants’ contention is that even if there was any customary right vested with the respondents, it was breached by the formation of the committee and passing of the compromise decree. However, subsequently, the respondents filed civil suit O.S. No. 1/1998 before the Waqf Tribunal, Kavarathi praying for a declaration that the office of mutawalli of the Jumah mosque is vested with the Pattakal family. Initially, the suit was decreed in their favour, but the High Court on appeal remanded it back to the Waqf Tribunal for fresh disposal.

5. After remand, the Waqf Tribunal by its judgment dated 20.05.2006 held that there was no evidence to show that the mosque was being managed by an elected committee. Though the 4 Tribunal declared that the compromise deed in O.S. No. 10/1974 was void, as no application was made for leave of the Court, and the respondents’ family was not given notice as required under Order XXIII Rule 3B of the Civil Procedure Code (for short “CPC”), it found that the respondents, on their part, had not produced any positive evidence to show that Ubaidulla was the first mutawalli of the Jumah mosque, and that the customary right to the office of mutawalli was vested with their family i.e. Pattakal family. Rather, the right to manage the mosque was vested with the local residents. Hence, it dismissed the suit and directed the parties along with the Waqf Board to draft a scheme for the management of the mosque. Against this judgment, the respondents filed a revision petition before the High Court.

6. The High Court in the impugned judgment found that there was no evidence to show that anyone apart from the respondents had functioned as mutawalli of the mosque at any point of time. It held that the committee in existence from 1966­ 1972 was only a committee for overseeing the repairs and maintenance of the mosque, and not for management thereof, and agreed with the Tribunal’s reasoning with respect to the 5 compromise decree being void. On this basis, it decreed that the office of mutawalli was vested with the respondents by custom. Hence, these appeals by the various appellants before us.

We would like to emphasize that we have not been called upon to decide whether the respondents have a customary right to be the Kazi of the mosque, since the decision in S.A. Thangal is not in challenge before us. Therefore, we desist from looking any further into the matter.

29. The appellants’ argument that the respondents’ claim to the office of mutawalli is defeated by the appointment of certain third parties as Kazis in the 1920s, i.e. before the enforcement of Kazis Act,1880 in the area, must also be considered in the light of the above discussion.

32. We also find ourselves unable to agree with the contention of the appellants that the violations of Order XXIII Rule 3B, CPC while passing the compromise decree dated 16.02.1981 in O.S. No. 10/1974 are merely procedural and do not vitiate the decree, and that the decree should therefore be regarded as proof of breach of custom.

Further, we find that in addition to the above procedural violation, the compromise decree is also illegal insofar as it fails to comply with Section 60 of the Wakf Act, 1954, which provides that no suit in any Court by or against the mutawalli of a wakf relating to the rights of the mutawalli shall be compromised without the sanction of the Wakf Board. Rather than obtaining the sanction of the Wakf Board prior to the decree, the compromise decree mentions in paragraph 7 that the decisions taken therein are to be subsequently intimated to the Wakf Board. Hence, we find ourselves in agreement with the findings of the lower Courts that the compromise decree was illegal and void.

36. Therefore, the appeals are dismissed and the impugned judgment and order is confirmed.

(AJAY RASTOGI) New Delhi;

August 1, 2019.