HAMMAD AHMED versus ABDUL MAJEED & ORS.
[2019] 6 S.C.R. 402, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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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
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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
Chief Mutawalli.  [Paras 37- 39][428-A; 429-B-D]
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
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1.2  The rule of primogeniture is not a rule applicable to
the Muslims as per the Personal Law as held in Faqruddin’s case.
The 1948 Deed is unambiguous that two brothers ‘HHAH’ and
‘HMS’ 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.
[Para 42][430-B-D]
1.3  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.
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. [Paras 43, 44][430-E; 431-A-B]
1.4  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. 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.  [Paras 45, 46][431-B; 432-D]
1.5  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. 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
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Deed are that the senior most male descendant in the line of
succession of Wakif Mutawalli shall be Chief Mutawalli.
[Paras 47, 48][432-E-G]
1.6 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.  The action of the Wakif Mutawalli in nominating the
senior most male descendant ‘AM’ and his younger son-the
Appellant as Mutawallis in terms of 1948 Deed shows that his
both lines of successors were treated equally. [Paras 49, 50]
[432-H; 433-A-C]
1.7  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
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 was 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. [Paras  51, 54]
[433-E-G; 434-D-E]
1.8  1973 Deed provided for disqualification of conviction
in criminal case involving moral turpitude. None of the criminal
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
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prosecution launched against the Appellant have ended up in
conviction, therefore, there is no disqualification attached to the
Appellant at this stage. [Paras 55][435-F]
1.9  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, Single Judge and the Division Bench
has examined such question only. Even, before Supreme 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. [Paras 57, 58][434-H; 435-A; G-H; 436-A-C]
1.10
The order passed by Division Bench is set aside
and that of the Single Bench is restored. The parties will
additionally continue with the arrangements arrived at in respect
of the banking operations of the Hamdard in terms of the
resolution dated 28.04.2015. 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. 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.  [Paras 59-61]
[436-C-F]
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Faqruddin v. Tajuddin
(2008) 8 SCC 12 : [2008] 9
SCR 377 ; Delhi Development Authority v. Durga
Chand Kaushish (1973) 2 SCC 825 : [1974] 1  SCR
535 ; Deoraj v. State of Maharashtra and Others (2004)
4 SCC 697 : [2004] 3 SCR 920 – relied on.
A. Aruputham v. A.V. Yagappa  (1971) 3 SCC 808 –
held inapplicable.
Dorab Cawasji Warden v. Coomi Sorab Warden and
Others (1990) 2 SCC 117 : [1990]  1 SCR  332 ; Dollar
Company, Madras v. Collector of Madras (1975) 2
SCC 730 : [1975] Suppl. SCR 403 ; Wander Ltd and
Another v. Antox India P. Ltd. (1990) Suppl. SCC 727;
Mohd. Mehtab Khan and Others v. Khushnuma Ibrahim
Khan and Others (2013) 9 SCC 221 :  [2013] 3 SCR
359; Samir Narain Bhojwani v. Arora Properties and
Investments and Another 2018 (10) SCALE 33 ; The
Secretary of State for India in Council v. Syed Ahmad
Badsha Sahib Bahadur (1921) LW Mad.188 (DB);The
Secretary of State for India in Council vs. Syed Ahmad
Badsha Sahib Bahadur  (1921) 14 L.W. 128 (F.B.)
– referred to.
Case Law Reference
[2008] 9 SCR 377
       relied on
Para 25
[1990]  1 SCR  332
       referred to
Para 27
[1975]  Suppl. SCR 403     referred to
Para 27
(1990) Suppl. SCC 727      referred to
Para 27
[2013] 3 SCR 359
       referred to
Para 27
2018 (10) SCALE 33        referred to
Para 31
(1971) 3 SCC 808
       held inapplicable Para 40
[1974] 1  SCR 535
        relied on
Para 45
(1921) LW Mad.188 (DB)  referred to
Para 52
(1921) 14 L.W. 128 (F.B.)  referred to
Para 52
[2004] 3 SCR 920
relied on
Para 57
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
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CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 3382-3383 of 2019
From the Judgment and Order dated 27.11.2018 of the High Court
of Delhi at New Delhi in FAO (OS) Nos. 278 and 280 of 2017.
Kailash Vasdev, Sr. Adv., Shreyans Singhvi, Ms. Ekta Mehta,
Umrao Singh Rawat, Ms. Jaikriti S. Jadeja, Advs. for the Appellant.
Mukul Rohatgi, Sudhir Nandrajog, Sr. Advs., Saket Sikri, Simran
Mehta, Ms. Ekta Sikri, Anirudh Bakhru, Vikalp Mudgal, Ms. Ranjeeta
Rohatgi, Ms. Sharmila Upadhyay, Satinder Singh Bawa, Sudarsh Menon,
Rajesh Rathod, Deepak Goel, Bobby Lao, Ms. Arunima Dwivedi,
Advocates for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. Leave granted.
2. The challenge in the present appeals is to an order passed by
the Division Bench of the High Court of Delhi on 27.11.2018 whereby
an application filed by the Plaintiff under Order XXXIX Rules 1 and 2 of
Code of Civil Procedure, 19081 was dismissed. The Division Bench has
set aside an order passed by the learned Single Bench on 25.10.2017.
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 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
1  Code
2  Hamdard
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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 Deed3 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.
5. The Appellant filed an application under Order XXXIX Rules 1
and 2 read with Section 151 of the Code along with the suit claiming the
following interim directions:
“a)     To release the salaries and other dues of all the Mutawallis
of HLI (including Defendant No. 4) from September, 2016 till
date.
b)        Direct all the banks as stated in para no. 2 of the application,
to allow the plaintiff to operate accounts maintained by HLI as
sole signatory in his capacity as Chief Mutawalli.
c)       An order directing the defendants no. 1 and 2 to handover
the password of the domain name www.hamdard.com,
www.hamdard.in and www.hamdardindia.com
and its e-mail
server password to the plaintiff.
d)        Direct defendants no. 1 and 2 to disclose and handover the
ERP (Enterprise Resource Planning) Admin Control Password.
e)       Pass any other or further relief(s) which this Hon’ble Court
may deem fit and proper in the facts and circumstances of the
case.”
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
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
3  Deed
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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: -
“28. At the time of disposal of interim applications, only prima
facie view of the matter is to be taken. On perusal of the various
clauses of the Trust Deed, it can be inferred, at this stage, that the
senior-most male descendant in the line of succession (of Wakif
Mutawalli) is prima facie entitled to be appointed as Chief
Mutawalli. It is not in dispute that presently the second defendant
is the senior most male descendant in the line of succession of
Wakif Mutawalli. It is fairly admitted by the defendants that the
second defendant would remain Chief Mutawalli during his life
time and after that, it can devolve upon the plaintiff in terms of the
clauses of the Trust Deed. Clause 3 is very specific and categorical
in this regard. It cannot be interpreted that the male descendant in
the line of succession would be that of
the Chief Mutawalli to be
appointed as Chief Mutawalli. This interpretation will lead to the
conclusion that the office of Chief Mutawalli would always remain
in the family of the plaintiff to the exclusion of the second defendant
and his family members for all the time to come.
29. I find no substance in the arguments that the succession to the
office of Chief Mutawalli must devolve by the rule of lineal
primogeniture….”
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“47.
In view of observations above, the defendants No. 1 &
2 are directed to hand over the password of the
domain 
name 
www.hamdard.com,www.hamdard.in
and www.hamdardindia.com and its e-mail server password to
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the plaintiff. They shall also disclose and handover the ERP
(Enterprise Resource Planning) Admin Control Password.”
8. The learned Single Bench also did not find any merit in the
argument that the Appellant has incurred disability on account of pending
criminal cases against him in terms of Clause 6 of the 1973 Wakf Deed4,
as amended on 26.6.1973. The learned Single Bench held that mere
pendency of criminal proceedings cannot debar the Appellant to be
appointed as Chief Mutawalli as the disqualification as per Clause 6 (2)
of the Deed is conviction of an offence involving moral turpitude alone
for disqualification. The relevant clause reads as under:-
“In spite of the fact that a person has a right to be appointed as a
Mutawalli under Clause Four herein, the Majlis-e-Ayan shall have
the authority by a Special Resolution, to refuse to appoint such
person as a Mutawalli or in the event of such a person having
already been appointed as a Mutawalli, to remove or suspend him
from office, if:
1.  He is a minor or insane or by reason of lack of education,
experience or old age and weak health is unable satisfactorily to
perform his duties as a Mutawalli;
2.  He is dishonest, addicted to alcohol, gambling or has been
convicted of some crime involving moral turpitude;….”
9. Two First Appeals were preferred by the present Respondent
Nos. 1 and 2. The learned Division Bench set aside the order passed by
the learned Single Judge prima-facie finding that though the
rule of
primogeniture is not applicable as a rule of succession amongst Muslims
but that is not a ground to overrule its application if provided in the
testamentary or other document. The Division Bench relied upon para 3
of the 1973 Deed that after the death of First Chief Mutawalli, the senior
most male descendant in his line is to be appointed as Chief Mutawalli.
The Bench recorded the following findings: -
“28. This court is of opinion that Faqruddin (supra)  is an authority
that under Muslim personal law, lineal primogeniture does not apply.
However, it nowhere states that lineal male primogeniture is
prohibited-either in its application in a testamentary document, or
4  1973 Deed
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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in a trust. In fact in Faqruddin (supra), the spiritual nature of the
office and the acceptance of the holder, by the congregation were
proved; they were not in controversy. For these reasons, that
primogeniture is not applicable as a rule of succession amongst
Muslims, is not a ground to overrule its application if a given deed
(testamentary or otherwise) so directs. Likewise, in Aruputham
(supra), in fact the court upheld the applicability of the relatively
simpler rule of succession through lineal male primogeniture, rather
than through a more complicated generation by generation process
of discerning who amongst a collegial body, was entitled to
“ambulatory” lineal primogeniture succession.
xxx
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30.  A complete reading of the provision (relating to succession)
therefore, leads one to conclude that after the death of the first
Chief Mutawalli, the senior most male in his line- and one who is
also a Mutawalli, is entitled to succeed to the office. The last
condition is important, because one might be the senior most male
member; yet existing membership as a Mutawalli ensures that
the wakf is spared the risk of experimentation and vagaries of
administration by one alien to its governance. The last internal
clue, which has assumed some importance in this case, is that
during the tenure of a Chief Mutawalli (or any Chief Mutawalli)
he is the President of the Majlis-e-Ayan “the descendant second
in seniority to
the Chief Mutawalli will be its Nazir/Secretary”.
This condition is to be read along with the other two preconditions,
because it occurs as part of the principle governing succession.
The designation of a Nazir or Secretary, has to be of the
“descendant second in seniority to the Chief Mutawalli”. In other
words, the successor to the office is also revealed during the
lifetime of the holder, Chief Mutawalli, in the persona of the Nazir,
who is second in seniority to the Chief Mutawalli.”
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:
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“1. There shall be at least one or maximum two Trustees (Mutwalli)
and if there is one Trustee then he will be given fees of Rs.1 anna
from special profit and if there are two Trustees then both will get
from the income Rs. 1.5 anna as commission and this right will be
beside the share of the family income which according to the
terms of the Trust Deed will be obtained by the Trustee or Trustees
from his forefather, but till the time owner no. 1 and 2 will remain
as the Trustee of the Trust they will not be given any right under
this section.
2. Till the time we owners from this Trust, ownership No. 1 Haji
Abdul Hameed and owner No. 2 Hakeem Hafiz Mohd. Sayeed is
alive then we both will be Trustee of this Trust and all the rights
regarding the management of the Trust will remain jointly and
severally with both of us and this right will be received by both of
us managers jointly. That we can appoint someone else as Trustee
during our life time or we can include any other person to share
the benefit of the Trust with compensation  or without compensation
and for making arrangement after our death we can appoint any
person as a Trustee against the terms of the Trust Deed and we
both the Trustees will have rights during our life time jointly and in
the case that only one Trustee is alive then he will have this right
alone to decide regarding that the above mentioned condition and
the arrangement or way of distribution of the income and right of
inheritance in
the above Trust Deed in proper manner or to increase
or decrees it. The Trustee or Trustees we will appoint under this
section for doing our work through written agreement, after us
only that persons can be appointed as Trustee. Right to remove
the trustee which will be nominated and appointed by us will be
there to us jointly or separately.
3. In case of death of anyone of the Trustee then the deceased
Trustee will be replaced by his eldest son and in case of death of
the other trustee he will be replaced by his eldest son and if out of
us the trustees anyone son is minor or he is not capable to fulfil
the duties of the trustees then till that son becomes major and
capable to fulfil the duties of trustees the sol trustee will manage
all the works of the Trust alone. After we both trustees till the
time whenever there will be two trustees of the trust, their right
will be distributed by resolution by Majlis-e-Ayan, but the Majlis-
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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e-Ayan will not have right to decide the rights or increase or
decrease the right or to distribute rights of both the Trustees
together or separately without any special reason or justification
because of which both the trustees or anyone of them cannot
perform his duties with full independence or properly.
4. After us, and after the trustee or trustees who will be appointed
as Trustees, the trustee of this Trust will be appointed from our
sons who will be the eldest in the age and after that from son of
our sons the eldest son will be appointed as Trustee and in this
manner the appointment of the trustee of the trust will continue
from our sons generation by generation and if no son is there
from our children who is capable of managing and taking care of
this Trust then out of the sons of our daughter, one will be appointed
as the Trustee, and if the sons of our daughter are not capable to
manage Trust, then from our children any such lady will be
appointed as Trustee who has capability of trustee.  God forbids
out of our children any male or female who is capable to be
appointed as trustee is not there then the Majlis-e-Ayan will have
a right through the resolution they can appoint any non-family
person as trustee who is capable to manage and increase the
trust.”
11. Mst. Rabea Begum died on 5.10.1948, whereas, the other
Trustee Hakim Mohd. Sayeed migrated to Pakistan in the year 1948.
His interest was declared
evacuee property on 06.08.1948. Subsequently,
his share was purchased by Hamdard for the purpose of Wakf Quami,
that is for charity on 22.06.1950. Thus, Haji Hakim Abdul Hamid became
the sole surviving Wakif Mutawalli in terms of the 1948 Deed.
12. The above said Wakif Mutawalli in the year 1964 appointed
his two sons Abdul Mueed (born in the year 1935) and Hammad Ahmed
(born in 1945) as Mutawallis.  The Wakif Mutawalli has issued various
declarations from time to time in respect of working of Hamdard. On
the basis of all such declarations, a comprehensive declaration was issued
on 02.07.1973 amending the 1948 Deed substantially. The amended Deed
was countersigned by the Wakif Mutawalli on 26.6.1973. It may be
stated herein that though the declaration and the countersignatures are
of different dates but both documents are contemporaneous and almost
containing similar recitals.
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13. The Appellant relies upon the declarations in the nature of
amendments in the 1948 Deed carried on 02.07.1973 as to who 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:
“2. In exercise of the rights, powers and duties vested in me by
the Wakf-Deed I had made some declarations for efficient and
better management of the Wakf and for clarifications and
interpretations and removal of doubts and difficulties and the said
declarations have been enumerated as various appendices to the
Wakf-Deed and now they stand merged and incorporated in the
text of the relevant provisions and appropriate contexts for the
sake of convenience.  These declarations were made to meet the
exigencies of time and situation and within the framework of the
Wakf for the benefit of charity and advancement of charitable
objects and compliance of the basic provisions of the Wakf.
3.
In view of the vast expansion in the activities of the
charity for which the Wakifs dedicated, complex problems of
modern management and for more efficient administration, control
and fulfilment of the object of charity and to meet the requirements
of the changing tax and other laws it has become necessary to
make a further declaration for clarification, explanation, elucidation,
alteration, removal of doubts and difficulties, if any, and for further
exposition of the provisions and meeting the
requirements of
changing laws and safeguarding the objects of charity and the
business of the Wakf which is for charity and for advancement of
the charitable objects.  Accordingly, I, in my capacity as sole Wakif-
Mutawalli, do hereby declare on solemn affirmation regarding
matters referred to above, effective from 01.01.1973:”
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“Clause No. 1:
This clause is substituted by the following text;
“For the management of the Wakf there shall be at least one and
at the most five Mutawallis including the Wakif-Mutawalli and
the Chief Mutawalli.”
“The senior most among the male descendants of the Wakif-
Mutawalli who shall be holding an office of Mutawalli will be the
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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Chief Mutawalli. After the Wakif-Mutawalli ceases to be
Mutawalli, every Chief Mutawalli shall have the same rights and
duties of administration of the Wakf and power of making
regulations therefore as are provided in this Deed for the Wakif-
Mutawalli and allocate rights and duties among other Mutawallis.
With the exception of Wakif-Mutawalli, the remuneration of the
Chief Mutawalli and Mutawallis for services rendered to the Wakf
shall be such as may be decided upon by the Wakif-Mutawalli
and after he ceases to be Mutawalli, by the Chief Mutawalli in
case of Mutawallis, and the Majlis-e-Ayan in case of Chief
Mutawallis.  These remunerations will be decided upon after taking
into account the nature of service rendered by each one of them
and the extent of the activities of the Wakf.”
“The above remuneration of a Mutawalli will be in addition to the
share of Khandani Income which may be due to him under this
Wakf-Deed, except in the case of Wakif-Mutawalli Hakim Abdul
Hameed. During the life time of Wakif-Mutawalli Hakim Abdul
Hameed there will be no Khandani Income.  He will be paid for
services rendered Rs. 72,000/- a year or 7/64 whichever is less.”
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Clause 3: This clause is substituted by the following text:
“The First Chief Mutawalli will be appointed by Wakif-Mutawalli.
And 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.  After the Wakif-Mutawalli,
the division of rights and duties among the Mutawallis shall be
made by the Chief Mutawalli for efficient working of the Wakf
and the Majlis-e-Ayan shall have no right to disturb this division or
render it difficult for the Chief Mutawalli or any of the Mutawallis
to perform his or their duties to manage the Wakf satisfactorily
and with proper freedom of action.”
     “This Chief Mutawalli will be the Sadar (President) of the
Majlis-e-Ayan and the descendant second in seniority to the Chief
Mutwalli will be its Nazir (Secretary).”
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 Clause 42  :
This Clause is substituted by the following text:
“42.:During the life time of Wakif Mutawallis there will be no
Khandani Income.  He will be paid for the services rendered
Rs. 72,000/- a year or 7/64 of the net divisible profit whichever is
less.  The Khandani Income will arise and become payable only
after the death of Wakif-Mutawalli as per Shariat law.”
“42-A.: Mr. Abdul Mueed and Mr. Hammad Ahmad, 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 Mutawallis and Mutawallis 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 Majlish-e-Ayan.””
14. The 1948 Deed as countersigned on 26.06.1973 after
incorporation of the amendments by Wakif Mutawalli has been appended
as Annexure P.1. The relevant extracts from such amended document
are as under:
“1. For the management of the Wakf there shall be at least one
and at the most five Mutawallis including the Wakif Mutawalli
and the Chief Mutawallis.
The senior most among the male descendants of the Wakif
Mutawalli who shall be holding an office of the Mutawalli will be
the
Chief Mutawalli.  After the Wakif Mutawalli ceases to be
Mutawalli, every Chief Mutawalli shall have the same rights and
duties of administration of the Wakf and power of making
regulations therefor as are provided in this Deed for the Wakif
Mutawalli and allocate rights and duties among other Mutawallis.
With the exception of Wakif Mutawalli, the remuneration of the
Chief Mutawalli and Mutawallis for services rendered to the Wakf
shall be such as may be decided upon by the Wakif Mutawalli and
after he ceases to be Mutawalli, by the Chief Mutawalli in case
of Mutawallis, and by Majlis-e-Ayan in case of Chief Mutawalli.
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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These remunerations will be decided upon after taking into account
the nature of service rendered by each one of them and the extent
of the activities of the Wakf.
The above remuneration of a Mutawalli will be in addition to the
share of Khandani Income which may be due to him under this
Wakf-Deed except in the case of Wakif Mutwalli Hakim Abdul
Hameed. During the life time of Wakif Mutawalli Hakim Abdul
Hameed there will be no Khandani Income. He will be paid for
services rendered Rs. 72,000/- a year or 7/64 whichever is less.
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3. The First Chief Mutawalli will be appointed by Wakif Mutwalli
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. After the Wakif-Mutawalli, the division
of rights and duties among with Mutwallis shall be made by the
Chief Mutawalli for efficient working of the Wakf and the Majlis-
e-Ayan shall have no right to disturb this division or render it
difficult for the Chief Mutawalli or any of the Mutawallis to perform
his or their duties to manage the Wakf satisfactorily and with
proper freedom of action.
The Chief Mutwalli will be the Sadar (President) of the Majlis-
e-Ayan and the descendant second in seniority to the Chief
Mutawalli will be its Nazir (Secretary).
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6. In spite of the fact that a person has a right to be appointed as
a Mutwalli under Clause Four herein,
the Majlis-e-Ayan shall have
the authority by a Special Resolution, to refuse to appoint such
person as a Mutawalli or in the event of such a person having
already been appointed as a Mutawalli, to remove or suspend him
from office, if:
(1) He is a minor or insane or by reason of lack of education,
experience or old age and weak health is unable satisfactorily to
perform his duties as a Mutawalli;
(2) He is dishonest, addicted to alcohol, gambling or has been
convicted of some crime involving moral turpitude;….
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8. In the event of Wakif Mutawalli ceasing to be the Mutawalli of
this Wakf, the general superintendence of the Wakf shall vest,
subject to the terms of this Deed, in a Majlis called Majlis-e-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.
9. An ordinary meeting of the Majlis-e-Ayan shall, subject to the
rules and bye-laws framed by it, be held at least twice a year.
(Whenever) Whatever resolutions are passed by a majority of
votes of members present at such meetings, the same shall be
called ‘ORDINARY
RESOLUTIONS’. The Chairman of the
Meeting shall have the casting vote.
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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.”
15. The Wakif Mutawalli appointed his grandsons Abdul Majeed
(eldest son of Abdul Mueed born on 23.12.1969) and Hamed Ahmed
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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(eldest son of Hammad Ahmed born on 25.3.1977) as Mutawallis on
30.05.1995 as fourth and fifth Mutawalli. Haji Hakim Abdul Hamid, the
Wakif Mutawalli died on 22.07.1999 that is after the amendments in the
deed of Wakf.
16. On 04.07.1995 the Wakif Mutawalli constituted Board of
Mutawallis.  Abdul Mueed was declared to be the Vice Chairman and
his son Abdul Majeed as Secretary of the Board of Mutawallis. Such
declaration reads as under:
        “HAMDARD
      Dated 04/07/1995
CONSTITUTION OF THE BOARD OF MUTAWALLIS
Presently, Wakif Mutawali, Chief Mutawali and Mutawali are
consulting and discussing the affairs of the Hamdard Dawakhana
(Wakf) both formerly and informally. Now two more Mutawallis,
viz. Mr. Abdul Majeed & Mr. Hamid Ahmed eldest sons of Mr.
Abdul Mueed and Mr. Hammad Ahmed respectively, are appointed
as Mutawallis of the Wakf. They will be working from the day
they assume their offices.
It is felt that the Board of Mutawallis should be constituted in the
life of Wakif Mutawalli, which can be converted later into “Majlis-
e-Ayan” after Wakif Mutawali ceases of hold his office.
As per clause 8 of the Wakf Deed of Hamdard Dawakhana,
“Majlis-e-Ayan” will be constituted in the event of Wakif Mutawalli
ceasing to be Mutawalli of Wakf for the general superintendence
of the Wakf.
With this order, I hereby constitute the board of Mutawallis for
the Hamdard Dawakhana (Wakf) as under:-
1. Hakeem Abdul Hameed
(Wakif Mutawalli)
: Chairman
2. Mr. Abdul Mueed
: Vice Chairman
3. Mr. Hammad Ahmed
: Senior Mutawalli
4. Mr. Abdul Majeed
            : Mutawalli
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5.  Mr. Hamid Ahmed- can attend the meetings as an observer till
he assumes office of Mutawalli.
Mr. Abdul Majeed will be the Secretary of the Board of Mutawallis
and he will issue the agenda and will record the minutes.
In the absence of Wakif Mutawalli, Vice Chairman will preside
over the meetings.
The meeting will be held initially fortnightly i.e. for about a year
and subsequently the frequency will be reviewed.
The Board of Mutawallis will supervise, monitor and review the
functions of Hamdard Dawakhana (Wakf).  The Board of
Mutawallis will finalise and approve the budgets, working plans,
projects and major policies which are not of routine in nature.
The Board of Mutawallis will also review the reports, budgets
and plans of the Aid Receiving Institutions from Hamdard
Dawakhana(Wakf).
This Board will start functioning from today.
             Sd/-
                                                        (Hakeem Abdul Hameed)
                                                                    Wakif Mutawalli”
17. After the death of Wakif Mutawalli, Abdul Mueed as the Chief
Mutawalli appointed Asad Mueed, his younger son born on 1.9.1973, as
the fifth Mutawalli on 17.04.2000. It is said Asad Mueed, who is Plaintiff
in Civil Suit No. 162 of 2017. Abdul Mueed died on 19.3.2015, leading to
disputes between the parties.
18.  Sajid Ahmed son of Hammad Ahmed (born on 5.6.1978) was
appointed as fifth Mutawalli on 14.4.2015 by Hammad Ahmed claiming
himself to
be Chief Mutawalli after the death of Abdul Mueed, the first
and last undisputed Chief Mutawalli.
19.  In this background, the learned Senior Counsel for the Appellant
argued that the rule of primogeniture is not contemplated by the Deed as
amended in the year 1973 by the Wakif Mutawalli. Learned Senior
Counsel for the Appellant refers to the various clauses of the 1948 Deed,
which contemplate that the Wakif, his sons and grand-children would
not get anything as income but could receive remuneration only for
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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consideration of services rendered to the Wakf. The Wakif Mutawallis
and their successors would have no right of ownership or power of
disposition in the capital, the assets, the corpus and the properties of the
Wakf or any appreciation in value thereof.
20. Earlier four suits including one by Hamdard bearing Suit No.
117 of 1972 were decided by the learned Single Bench of High Court of
Delhi on 23.12.2011.  The challenge in the suit was to a notification
dated 12.12.1970 declaring Hamdard as Wakf under the Wakf Act, 1995.
The said notification was alleged to be illegal and void.  It was held
therein that the Hamdard is not a Wakf within the meaning of the Wakf
Act. The relevant extracts from the judgment of the learned Single Judge
read as under:
“74.    In view of the above discussion, it is held that the Dawakhana
Wakf is not a Wakf within the meaning of the term, under the
Wakf Act, despite the use of the term “wakf” (which appears to
be misleading). It is settled law that nomenclature of a document
or deed is not conclusive of what it seeks to achieve; the court
has to consider all parts of it, and arrive at a finding in regard to its
true effect….
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77. In this case, as held earlier, the Dawakhana Wakf is not a
wakf, on an application of all the relevant tests.  Therefore, the
question of the Nursing Home, the Institute of History of Medicines
and Medical Research, Hamdard National Foundation, Indian
Institute of Islamic Studies being wakfs just because their properties
were purchased out of the income of the Dawakhan Wakf, would
not arise. Some of them, are in fact independent juristic entities,
being societies, capable of, and in fact holding properties. In the
case of registered societies, by virtue of Section 5 of the Societies
Registration Act, 1860 the property, movable and immovable,
belonging to it, if not vested in trustees, would be deemed to be
vested in its governing body.  This is completely contrary to a
wakf, where the mutawalli is a mere manager; the property is
perpetually and irrevocably dedicated to God Almighty.
Furthermore, each of the said bodies and entities is autonomous,
and the Dawakhana Wakf is not the exclusive donor; it is one of
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the sources of grant. They can itself seek donations and grants
from other institutions in furtherance of its objectives. Lastly, there
is nothing in the deeds or instruments creating them, either in the
Memorandum or Articles of Association, indicative of perpetual
dedication, or its being in favour of the Lord Almighty, to obtain
divine pleasure.  In other words, the controlling instruments, or
documents which have created these institutions, are singularly
silent about the essential elements which signify a wakf.  The
court therefore, holds that the said institutions are not wakf, even
though some of them are beneficiaries of the Dawakhana Wakf.
The issues are answered against the Defendants, and in favour
of the plaintiff.”
Such judgment and decree was affirmed in the appeal.
21. The argument is that the entire reading of the Deed particularly
Clauses 1, 3 and 42-A would show that the senior most surviving male
successor is contemplated to be the Chief Mutawalli, whereas, the four
other male successors/descendants are contemplated to be the
Mutawallis. The Deed also contemplates that in the event, if there is no
male descendant in the direct line of succession who is fit person to
assume charge as a Mutawalli of the Wakf, then anyone from the male
descendant of the female issue being rightful claimant to succession
shall be appointed as Mutawalli. If there is no male descendant of the
female issue, who is fit enough to become a Mutawalli then any
female
issue of descendants who shall be fit to become Mutawalli shall be so
appointed. It is only in the event, when there is no male or female left
from the male and female descendants, Majlis-e-Ayan shall have the
right to appoint by an extra-ordinary resolution, someone from outside
the family who has the ability to act as a Mutawalli and to administer the
Wakf property.
22. In terms of Clause 1 of the 1973 Deed, there shall be minimum
of one and maximum of five Mutawallis including the Wakif Mutawalli
and the Chief Mutawalli. The senior most amongst the male descendants
of the Wakif Mutawalli who shall hold the office of the Mutawalli, will
be Chief Mutawalli. On the basis of such clause, it is argued that for a
Chief Mutawalli, the condition is that the person should be Mutawalli
and the senior most amongst the male descendants of the Wakif Mutawalli
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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shall be the Chief Mutawalli. After the death of Wakif Mutawalli, the
senior most male descendant, Abdul Mueed came to discharge the duties
of Chief Mutawalli. Therefore, after his death, the Appellant being senior
most male descendant of the Wakif Mutawalli, is to act as Chief
Mutawalli. Abdul Majeed, the elder son of First Chief Mutawalli cannot
be the Chief Mutawalli as is made out from the nature of the bequest
and the cumulative reading of the Wakf documents.
23. Learned Senior Counsel for the Appellant refers to Clause 3
of the Deed amended in the year 1973 to argue that the First Chief
Mutawalli is to be appointed by Wakif Mutawalli. Thereafter, the senior
most male descendant in line of succession and then holding an office of
Mutawalli will be the Chief Mutawalli. It is further stated that the Chief
Mutawalli would be called President of the Majlis-e-Ayan and the
descendant, who is second in seniority to the Chief Mutawalli will be its
Nazir (Secretary).
24. Referring to Clause 42-A of the 1973 Deed, it was pointed out
that Abdul Mueed was appointed as Chief Mutawalli and the Appellant
as Mutawalli by the Wakif Mutawalli. Therefore, a reading of the entire
document would show that the object of the Deed is to appoint the senior
most male descendant as the Chief Mutawalli. Since the Appellant is the
senior most male descendant, he has rightly issued an order on 20.03.2015
to take over the responsibilities as a
Chief Mutawalli.
25. Mr. Vasdev, learned Senior Counsel for the Appellant argued
that Asad Mueed has not pleaded in the suit that Abdul Majeed is entitled
to be Chief Mutawalli in view of rule of primogeniture or that Abdul
Majeed is Chief Mutawalli, but it was only in replication the plea of
applicability of rule of primogeniture was raised. It was submitted relying
upon the judgment in Faqruddin v. Tajuddin5 that rule of primogeniture
has no application amongst Muslims.
26. The reliance is placed upon an earlier order passed by the
Division Bench of the High Court of Delhi, in FAO(OS) 208/2017, directed
against an order of the learned Single Bench of 26.5.2017, wherein learned
counsel for the parties stated that issue relating to Chief Mutawalli is of
considerable importance as it affects the functioning of the aforesaid
institutions/ organisations.  The appeals were decided in view of the fact
that the matter was listed before the learned Single Judge on 30.8.2017.
The relevant extract from the said order reads as under:
5 (2008) 8 SCC 12
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“3. Learned counsel for the parties state that the issue relating to
Chief Mutawalli is of considerable importance as it affects the
functioning of the aforesaid institutions/organisations.  Counsel
for the parties state that they will make a request for early
adjudication of the said issue.  We hope and trust the matter would
be decided expeditiously.  We also record that the matter is already
listed before the single Judge on 30th August, 2017.”
27. It was argued that there is no impediment or bar on the judgment
of a Court to grant an injunction, even at the interim stage if there is
illegality for the reason that the Appellant is the senior most male
descendant in the line of Wakif Mutawalli, therefore, the Appellant is
entitled to control of domain names as Chief Mutawalli. Reliance has
been placed upon the judgment reported as Dorab Cawasji Warden v.
Coomi Sorab Warden and Others6.  It was also argued that in an
Appeal against an order of injunction, a Court of Appeal interferes not
when the judgment under attack is not right, but only when it is shown to
be wrong, placing reliance upon Dollar Company, Madras v. Collector
of Madras7.  The reliance is also placed upon a judgment reported as
Wander Ltd and Another v. Antox India P. Ltd.8 that the Appellate
Court will not reassess the material and seek to reach a conclusion
different from the one reached by the court below, if the one reached by
the court below was reasonably possible on the material.
The reliance
was also placed upon the judgment reported in Mohd. Mehtab Khan
and Others v. Khushnuma Ibrahim Khan and Others9 that the
Appellate Court should not have substituted its view on the matter merely
on the ground that in its opinion the facts of the case call for a different
conclusion.
28. Learned Senior Counsel for the Appellant argued that the
judgment reported as A. Aruputham v. A.V. Yagappa10  has been
wrongly applied to hold that the principle of lineal primogeniture applies
in the present case.  The said judgment arises out of a case where the
parties are governed by the Hindu Law of Succession wherein testator
has specified that his estate to come to his son and sons by the rule of
6  (1990) 2 SCC 117
7  (1975) 2 SCC 730
8  (1990) Suppl. SCC 727
9  (2013) 9 SCC 221
10  (1971) 3 SCC 808
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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primogeniture.  In the present case, in the case of Hanafi Muslims, the
Deed governing the succession to manage the affairs of a Wakf specifies
a line of succession as different and distinct from the said judgment. The
succession to the office of Mutawalli is governed by the terms of Deed.
Therefore, the question that who will succeed as a Chief Mutawalli is to
be arrived at only from the entire reading of the Deed.
29. It is also argued that on 28.04.2015, a resolution was passed
by all the Mutawallis that the banking operations shall be carried out by
Abdul Majeed and Hammad Ahmed. In pursuance of such resolution,
more than Rs. 900 crores have been disbursed to various parties in the
last 2 years. Since there is no rule of primogeniture and the Deed as
amended in the year 1973 has not changed the basic concept of Wakf
Management in the hands of two sons of Wakif Mutawalli and their
successors with the condition that the senior most male descendant will
be the Chief Mutawalli, therefore, Abdul Mueed, the senior most male
descendant, after the death of Wakif Mutawalli was rightly designated
as Chief Mutawalli and after his death, by virtue of the Deed, the
Appellant has rightly declared himself to be the Chief Mutawalli.
30. Mr. Rohatgi, learned Senior Counsel for the Respondents
argued that order of the Division Bench passed on 04.08.2007 relates to
issues pertaining to Chief Mutawalli, the issue that is to be framed
in a
suit and not for the purpose of deciding an interim injunction application.
Since the issues in the suit have not been framed, therefore, the question
that who will be the Chief Mutawalli is not an issue to be decided at the
time of consideration of application under Order XXXIX Rules 1 and 2
of the Code.
31. It is also argued that in an application under Order XXXIX
Rules 1 and 2 of the Code, the Court will not grant interim mandatory
relief resulting in creation of entirely new state of affairs which hitherto
never existed.  The reliance is placed upon Samir Narain Bhojwani v.
Arora Properties and Investments and Another11. It is contended
that the declaration of the Appellant to be Chief Mutawalli, disputed
immediately by Respondent No. 1, does not mean the existence of status
at the time of filing of the suit which can be protected in an application
under Order XXXIX Rules 1 and 2 of the Code.  Since the Appellant
has sought passwords of domain names, server and Enterprise Resources
112018 (10) Scale 33
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Planning System, it shows that the Appellant was not in control of the
management of Hamdard, therefore, injunction to hand over of the
passwords and thus management of Hamdard cannot be granted being
an injunction in the mandatory form.
32. It is also argued that Respondent No. 1 being in actual control
of Hamdard was not required to file a substantive suit for control of the
Organisation as he was already in control of the Organisation and all
Heads of the Departments of Hamdard report to him. He is the occupier
of all factories and the holder of all licences allotted to Hamdard.
33.  It is submitted that the language of the Deed as amended had
to be different if the contention of the Appellant is to be accepted. Though
1948 Deed sets out the “line of succession” of the said Wakif Mutawalli
but the amended deed does not contain any such or similar clause.
34. In pursuance of such Deed, Abdul Majeed was declared to be
Nazir by the Wakif Mutawalli on 04.07.1995 during his life time. Such
declaration will negate the argument that the Appellant was not the second
in the line of succession competent to be appointed as Nazir in terms of
Clause 3 of 1973 Deed. The parties have understood that position since
1995 when Abdul Majeed was declared as Nazir. The Appellant has not
disputed such arrangement for more than 20 years; therefore, the
Appellant cannot assert himself to be the Chief Mutawalli. It is also
argued that Abdul Mueed died on 19.03.2015 but the
suit has been filed
only on 16.05.2017, asserting himself to be Chief Mutawalli. Such
assertion also suffers from delay and laches. It is argued that the words
“in line of succession” would be rendered otiose and meaningless if the
contentions raised by the Appellant is to be accepted.
35. Relying upon the judgment reported as The Secretary of
State for India in Council v. Syed Ahmad Badsha Sahib Bahadur12,
it is argued that in the case of single indivisible hereditary office, the
succession should be governed by the principle of lineal primogeniture in
the absence of clear evidence to the contrary.
36. Further, the Division Bench has remitted the matter back to
the learned Single Bench to frame a neutral administrative oversee
mechanism for the management of Hamdard to balance the interests of
the parties.  Therefore, the order passed by the Division Bench does not
require any interference.
12(1921) LW Mad.188 (DB)
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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37. We find that the order of Division Bench cannot be sustained.
In an earlier suit, the challenge was to notification dated 12.12.1970
declaring Hamdard as Wakf under the Wakf Act, 1995. The Delhi High
Court examined 1948 Deed and also the amendments made in the year
1973, to arrive at a finding in regard to true nature of Wakf. It was held
as under:-
“74. In view of the above discussion, it is held that the Dawakhana
Wakf is not a wakf within the meaning of the term, under the
Wakf Act, despite the use of the term “wakf” (which appears to
be misleading). It is settled law that nomenclature of a document
or deed is not conclusive of what it seeks to achieve; the court
has to consider all parts of it, and arrive at a finding in regard to its
true effect…..
***
***
***
77.  In this case, as held earlier, the Dawakhana Wakf is not a
wakf, on an application of all the relevant tests. Therefore, the
question of the Nursing Home, the Institute of History of Medicines
and Medical Research, Hamdard National Foundation, Indian
Institute of Islamic Studies being wakfs just because their properties
were purchased out of the income of the Dawakhana Wakf, would
not arise. Some of them, are in fact independent juristic entities,
being societies, capable of, and in fact holding properties. In the
case of registered societies, by virtue of Section 5 of the Societies
Registration Act, 1860 the property, movable and immovable,
belonging to it, if not vested in trustees, would be deemed to be
vested in its governing body. This is completely contrary to a wakf,
where the mutuwalli is a mere manager; the property is perpetually
and irrevocably dedicated to God Almighty. Furthermore, each of
the said bodies and entities is autonomous, and the Dawakhana
Wakf is not the exclusive donor; it is one of the sources of grant.
They can itself seek donations and grants from other institutions
in furtherance of its objectives. Lastly, there is nothing in the deeds
or instruments creating them, either in the Memorandum or Articles
of Association, indicative of perpetual dedication, or its being in
favour of the Lord Almighty, to obtain divine pleasure. In other
words, the controlling instruments, or documents which have
created these institutions, are singularly silent about the essentials
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elements which signify a wakf. The court therefore, holds that
the said institutions are not wakfs, even though some of them are
beneficiaries of the Dawakhana Wakf. The issues are answered
against the Defendants, and in favour of the plaintiff.”
38. 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.
39.  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.
40. 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).
41. 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
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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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.
42. 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.
43. 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. Clause 3 of the declaration as also
the amended Deed of Wakf and Deed in the year 1973, referred to by
the parties, read as under:
Deed as amended in the year 1973
Declaration
3. 
The First Chief Mutawalli will 
be appointed by Wakif Mutwalli 
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.   
Clause 3: 
This 
clause 
is 
substituted by the following text:  
“The First Chief Mutawalli will be 
appointed by Wakif-Mutawalli.  And 
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.”
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44. 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.
45. 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.  One of the
judgments relating to the interpretation of documents is Delhi
Development Authority v. Durga Chand Kaushish13. It was held that
the meaning of the document or of a particular part of it is to be sought
for in the document itself. The Court held as under:-
“19. Both sides have relied upon certain passages in Odgers’
“Construction of Deeds and Statutes” (5th ed. 1967). There (at pages
28-29), the First General Rule of Interpretation formulated is: “The
meaning of the document or of a particular part of it is therefore to be
sought for in the document itself”. That is, undoubtedly, the primary rule
of construction to which Sections 90 to 94 of the Indian Evidence Act
give statutory recognition and effect, with certain exceptions contained
in Sections 95 to
98 of the Act. Of course, “the document” means “the
document” read as a whole and not piecemeal.
20. The rule stated above follows logically from the Literal Rule
of Construction which, unless its application produces absurd results,
must be resorted to first. This is clear from the following passages cited
in Odgers’ short book under the First Rule of Interpretation set out above:
Lord Wensleydale, in Monypenny v. Monypenny14 said:
                           “the question is not what the parties
to a deed may have intended to do by
              entering into that deed, but what is the
              meaning of the words used in that deed: a
              most important distinction in all cases of
            construction and the disregard of which
often leads to erroneous conclusions.”
13 (1973) 2 SCC 825
14 (1861) 9 HLC 114, 146
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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Brett, L.J., in Re Meredith, ex. p. Chick15  observed:
“I am disposed to follow the rule of construction which was
laid down by Lord Denman and Baron Parke…………….They
said that in construing instruments you must have regard, not
to the presumed intention of the parties, but to the meaning of
the words which they have used.”
21. Another rule which seems to us to be applicable here was
thus stated by this Court in Radha Sunder Dutta v. Mohd.
Jahadur Rahim and Others16 :
“Now, it is a settled rule of interpretation that if there be
admissible two constructions of a document, one of which will
give effect to all the clauses therein while the other will render
one or more of them nugatory, it is the former that should be
adopted on the principle expressed in the maxim ‘ut res magis
valeat quam pereat’.”
46. 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.
47. 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.
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.
49. 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
15  (1973) 2 SCC 825
16  (1861) 9 HLC 114, 146
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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.
50. 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.
51. 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.
52. 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 Bahadur17. 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
7(1921) 14 L.W. 128 (F.B.)
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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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
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injunction. In Deoraj vs. State of Maharashtra and Others18, 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
18 (2004) 4 SCC 697
HAMMAD AHMED  v. ABDUL MAJEED & ORS.
[HEMANT GUPTA, J.]
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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.
59. Thus, in view of above the appeals are allowed. The order
passed by learned Division Bench on 27.11.2018 is set aside and that of
the 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.
Divya Pandey
                               Appeals allowed.
*Ed. Note - Word ‘management’ substituted with the word ‘banking operations’ by
  subsequent Order as reported in [2019] 6 SCR 437.