18 May 2020 4:22 AM GMT
In a recent judgment, the Supreme Court held that a mutawalli can be appointed hereditarily, if permitted by the customs and usages of the waqf. The case, pertaining to the Jumma Mosque of Andrott island, arose in this way : One Ubaidulla, hailing from Arabia, came to the Amini Islands in the 7th century. He tried to convert the residents there but was unsuccessful....
In a recent judgment, the Supreme Court held that a mutawalli can be appointed hereditarily, if permitted by the customs and usages of the waqf. The case, pertaining to the Jumma Mosque of Andrott island, arose in this way :
One Ubaidulla, hailing from Arabia, came to the Amini Islands in the 7th century. He tried to convert the residents there but was unsuccessful. Thereafter, he went to the neighboring island of Andrott, and was ultimately successful in converting its residents. He constructed a mosque at Andrott and became its mutawalli. His descendants constituted the Pattakal family. It was their claim that the office of Mutawalli as well as that of the traditional Kazi were vested with that family. It was argued that the entire body of the Pattakal family formed the de jure mutawalli and that the members would then select a person from within themselves to act as de facto mutawalli.
This mosque was registered with the Lakshadweep Waqf board vide a notification dated 01.11.1968. In the waqf board records, it was noted that the mutawalli of the Mosque are the members of the Pattakal family.
The entire claim was denied by the defendants, who were residents, suing in representative capacity, claiming that the right to appoint a mutawalli vested in them. They argued that the mosque was built by the public and it was managed by persons who were elected by the worshippers in the mosque. It was also pleaded that no one has a special right to hold the office of the mutawalli or Khazi.
The dispute was taken to the Waqf Tribunal. It held that the Pattakal family does not have any vested right to manage the mosque and that the right of management vests in the public. Since there was a vacuum, the parties to the suit and the waqf board were directed to file a draft scheme for the institution. The Pattakal family took the matter to the Kerala High Court. Before the Division Bench, its attention was invited to the Gazetteer of India with respect to Lakshadweep and a work by one R.H. Ellis titled "The Short Account of the Lakkadive Islands and Minicoy" to contend that Khazi of Andrott was from the Pattakal tharvad. After referring to various documents relating to the mosque, the Bench reversed the order of the waqf tribunal and held that Pattakal family is the traditional and customary mutawalli of the mosque. To reach this conclusion, the Bench also relied upon the records maintained by the waqf board. On appeal, the Supreme Court affirmed the judgment of the Kerala High Court.
The issue that is here examined is whilst the court, dwelling deep into the customs and practices of Lakshadweep islands has, unfortunately, failed to take into consideration the applicable law – the Shariat.
By way of a very short premise, it may be pointed out that those who wanted heredity to be the source of leadership are the Shias and those who rejected heredity are the Sunnis. Therefore, for any institution which is governed by the Sunni law, the rule of succession to an office ought not to be by hereditary succession. However, in India, succession to the office of mutawalliship by succession crept in by custom. This was rectified by the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as the Shariat Act).
DOES SUNNI LAW RECOGNISE HEREDITARY SUCCESSION?
The Adrott Mosque is a Sunni institution governed by Shafi'i school of Islam. R.H. Ellis, the book alluded to by the Kerala High Court, writes : -
"…The religion is Muhammadan. Like the Moplahs on the mainland, the islanders belong to the Shaft school of the Sunni sect and acknowledge, besides the Koran, the authority of the Sunneh or customary law as interpreted by Shafi. They are very strict in all 'their religious observances…"
The Division Bench accepted the principle that Muslim law does not recognize hereditary succession to the office of mutawalliship. It held :
"…it is a settled principle that Mohammedan Law does not generally recognise hereditary right of Muthawalliship unless there is a custom and usage to that effect."
Having concluded that there was no hereditary right, were the courts right in concluding that custom and usage is permissible in matters of mutawalliship?
JUDICIAL APPLICATION OF WORK OF JURISTS
Several judgments have followed the aforesaid principle. First amongst these is Advocate General v. Fatima Sultani Begum, where the Bombay High Court held that the waqif has the right to reserve the superintendence of the waqf to himself or appoint someone else. When the waqif has specified the class from which the manager is to be selected, he cannot disregard the same and appoint a person not answering the description in the waqfnama. In other words, the waqfnama binds the waqif himself and consequently, the Kazi also.
If the Waqfnama specifies the manner of succession, Courts, while giving a preference to the wishes of the waqif, have NOT gone so far to recognize it as a hereditary right.
Saif Faiz Badruddin Tyabji J  held : -
"…In accordance with generally prevalent Muslim sentiments, and the law of waqfs supports these sentiments, members of the family of the waqif ought to be given preference in appointment as trustees. Thus-
In the Asul it is stated that the judge cannot appoint a stranger to the office of administrator so long as there are any of the house of the appropriator fit for the office; and if he should not find a fit person among them, and should nominate a stranger, but should subsequently find one who is qualified, he ought to transfer the appointment to him.
See Atimannessa Bibi v. Abdul Sobhan I.L.R(1915) Cal. 467, Niamat Ali v. All Raza (1914) 13 A.L.J. 26 and Phatmabi v. Haji Musa Sahib I.L.R(1913) Mad. 491.
3. I do not, therefore (in spite of the deference I should like to show to the Advocate General's point that unless outsiders are appointed as trustees the trust may become entirely a family affair) consider that there must necessarily be any outsider amongst the trustees. On the contrary I think the Muslim law does not dread the management of waqfs being retained in the family of the waqif. It disapproves of the introduction of an outsider in the administration at least of such a trust as is before me, unless the members of the waqif's family show their unfitness to be trustees.
4. I take this opportunity, however, of observing that though descendants of the waqif are favoured by the Court, when appointing a mutawalli, this does not mean that they have a hereditary right to be mutawallis, still less that their descent will protect them from removal if there is any mismanagement."
The Courts have also been called upon to decide on what would be the position when there is no waqfnama or when no directions have been given thereunder with respect to the succession.
The Madras High Court in Shah Ghulam Rahmutullah Sahib v. Mohammed Akber Saheb held that should no rules relating to filling up of the office of the mutawalli be laid down by the waqif, the power of appointment vests with the waqif during his life. Upon his death, it vests with the executor, or in absence of an executor, in the Magistrate and sovereign power, that is to say, in the Court.
Applying this principle, the Allahabad High Court held  :-
"The Hanafi law on the subject is as follows: "When the Superintendent is dead and the appropriator is still alive, the appointment of another belongs to him and not to the Judge; if the appropriator be dead, his executor is preferred to the Judge but if he has died without leaving an executor, the appointment of an administrator is with the Judge." Bailee, Hanafi Law, pp. 603 and 304.
In the case where a descendant or relative of the waqif is not willing to accept the office without a salary and an outsider is willing to accept it without a salary, the qazi should see whose appointment would be most beneficial to the waqf and who is fitted for the appointment.
16. The above extracts go to show that the appointment of a mutawalli to waqf property, in the absence of anything in the deed of waqf, rests with the Qazi. In this connection see Mohammad Sabir v. Mohammad Ali and The Advocate General v. Fatima Sultani Begum.
If the waqif lays down the rules relating to succession to the office of mutawalli, the Kazi, then the courts, and presently the waqf board, have to ensure the rules are complied, as long as it is beneficial to the waqf. If there are no such rules, then it is entirely the discretion of the appointing authority.
The aforesaid discussion brings one to the issue as to who has the power of appointment and what is the test that has to be applied.
With the enactment of the Kazis Act, 1880; the temporal powers of the Kazi was taken away and vested with the Courts. The Courts were exercising control through the provisions of Code of Civil Procedure. Due to a lacuna in the Wakf Act, 1954, this power was interpreted to continue with the civil courts. This position was, however, rectified and the power now vests with the waqf board.
Therefore, in case there is no waqfnama, the power of appointment is with the waqf board. The board should follow the principle that the appointment so made must be beneficial to the waqf and of a person, who is fitted for the appointment. It is not by hereditary succession.
It is a demand of the Waqf Act, 1995 that the Waqf board should apply the law applicable to the particular waqf while dealing with it. If a resolution is passed contrary to law, the Chief Executive Officer has the power to reserve the matter for the consideration of the Government. In this case, there was no waqfnama. Dehors a waqfnama, the Waqf Board would have to go by the Shariat. As supra and as declared by the Kerala High Court, the Sunni fiqh does not recognize hereditary succession.
SCOPE AND CONTENT OF SHARIAT ACT
Finding that the pure stream of the Shariat had been polluted by customs and usages, the then Central Legislature enacted the Muslim Personal Law (Shariat) Act, 1937. The statement of object and reasons of this Act reads as follows: -
For several years past it has been the cherished desire of the Muslims of British India that Customary Law should in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary Law is a misnomer in as much as it has not any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so-called Customary Law is simply disgraceful. All the Muslim Women Organisations have therefore condemned the Customary Law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them.
2. The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this present measure, if enacted, would have very salutary effect on society because it would ensure certainty and definiteness in the mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research. which is the chief feature of Customary Law.
Section 2 of the Act reads as follows : -
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession special property of females, including personal properly inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talak, ila, zihar, lian, khula and mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments), the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
Therefore, by virtue of this Act, Shariat applies to Wakfs from 1937 onwards. This Act specifically excludes application of Custom and usages. However, to make Islamic law applicable to areas which could not be included by the Central Legislature, the Provincial legislatures proposed amendments. The amendments proposed was in addition to the existing law and not in derogation thereof.
JUDICIAL PRONOUNCEMENTS ON APPLICATION OF SHARIAT ACT
Soon after the enactment of the Shariat Act, 1937 - a spate of litigation arose on its scope and content. However, the proper interpretation of the 1937 Act and the 1949 Madras Amendment were settled by a decision of the Supreme Court in C. Mohd. Yunus v. Syed Unnissa where Shah, J (as then was) held as under:
"10. Manifestly by this "Act, the rule of decision" in all questions relating to intestate succession and other specified matters including wakfs where the parties to the dispute are Muslims is the Muslim Personal Law. The terms of the Act as amended are explicit. Normally a statute which takes away or impairs vested rights under existing laws is presumed not to have retrospective operation. Where vested rights are affected and the question is not one of procedure, there is a presumption that it was not the intention of the legislature to alter vested rights. But the question is always one of intention of the legislature to be gathered from the language used in the statute. In construing an enactment, the court starts with a presumption against retrospectivity if the enactment seeks to affect vested rights: but such a presumption may be deemed rebutted by the amplitude of the language used by the legislature. It is expressly enacted in the Shariat Act as amended that in all questions relating to the matters specified, "the rule of decision" in cases where the parties are Muslims shall be the Muslim Personal Law. The injunction is one directed against the court: it is enjoined to apply the Muslim Personal Law in all cases relating to the matters specified notwithstanding any custom or usage to the contrary."
This unequivocally reiterates the position that the Shariat Act, 1937 applies to Waqfs and it has only been clarified further by the amendment Act of 1949.
Therefore, as per the Waqf Act, the boards should apply the law applicable to the particular waqf while dealing with it. If a resolution is passed contrary to law, the Chief Executive Officer has the power to reserve the matter for the consideration of the Government.
In other words, custom or usage is permissible, if and only if, the same is sanctioned by the school of Muslim law – for example, in appointment of a sajjadanashin. If the Sunni school of jurisprudence does not permit heredity, then the Waqf Board is bound by it. If it ignores the same, it will be in violation of the Waqf Act, 1995.
ADMINISTRATION OF THE LAKSHADWEEP ISLANDS
In a seminal work, Mr. A. Sreedhara Menon throws a lot of light on the history of these islands. Lakshadweep islands has seen several rulers. The author writes the administration was originally with a principality known as Ali Rajah's of Cannanore. In 1509, the Portuguese declared that the King of Portugal was the sovereign. It continued till 1543. Thereafter, the Arakkal family took over and it was in their control till taken over partly by Tipu Sultan of Mysore. The northern portion including Amindivi islands were controlled by Tipu and the southern islands by Arakkal kings. With the conquest of Cannanore by the East India Company in 1791, the southern islands came under their control. With the fall of Tipu in 1799, the Company took control of the entire island. In 1875, the British attached these islands to the Malabar District.
The British administrators declared these islands as a scheduled district under the Scheduled District Act, 1874. A special legal protection namely, to protect the area from the purview of the body of laws applicable in the mainland was evolved. The only exception was such laws could be applied if specifically extended to such areas. This continued from 1874 till 1912. In 1912, the Laccadive Islands and Minicoy Regulation of 1912 was enacted. Section 21 of this Regulation stated that all questions relating to any rights claimed or set up in the civil court should be determined in accordance with any custom - not manifestly unjust or immoral governing the parties or property concerned. In the absence of any such custom, the disputes should be decided according to justice, equity and good conscience. Consequently, as long as the 1912 regulations were in force, the cases were disposed off by finding out the custom of the community and whether the custom satisfies the requirements of law.
By virtue of the Government of India Act, 1919, the Scheduled Districts Act, 1874 was repealed. However, Section 52A of the 1919 Act continued the special legal protection. This position continued under the Government of India Act, 1935 as Lakshadweep islands came under "Excluded area". This continued till the islands were declared a Union Territory on 1st of November, 1956 pursuant to the re-organisation of the Madras State under the States Re-Organisation Act, 1956.
The President of India, in exercise of powers under Article 240 of the Constitution brought in the Laccadive, Minicoy and Amindivi Islands (civil Courts) Regulation Act, 1965. Regulation 16 of this order deals with Customary law. It declares : -
"Certain decisions to be according to the personal law or custom:- where in any suit or other proceeding it is necessary for a civil court, to decide any question regarding succession, inheritance, marriage, caste or any religious usage or institution, any custom having the force of law, or any personal law, governing the parties to or, applicable in relation to the properties in issue in, such suit or proceeding shall form the rule of decision except in so far as such custom or personal law has, by legislative enactment, been altered or abolished".
This regulation is clear that custom and usage has to be followed by the courts till the same have been legislatively altered or abolished.
1st of November, 1967 is a red-letter day in Lakshadweep. The Union of India extended the application of Central enactments to the islands. The Shariat Act, 1937 which abolished custom and usage to wakfs, was extended to Lakshadweep. The extension was for the entire Act without any modification. Therefore, in so far as waqfs are concerned, there is absolutely no scope for either the High Court or the Supreme Court to apply custom and usage and grant a declaration. This is by virtue of Section 4 of the 1965 regulations. Similarly, the Kazis Act, 1880 was extended to the Islands by the Laccadive, Minicoy and Amindivi islands (Laws) no. 2 regulation, 1970. This came into force on 15th of October, 1970. Therefore, the customary powers of administration by the Kazis also came to an end with this date.
Hence, the decree granted by the High Court and confirmed by the Supreme Court are against the public policy, namely, the Shariat Act, 1937 and hence, void and unenforceable.
PLAYING OTHELLO WITHOUT THE MOOR ?
The entire case related to a mosque. A mosque is a waqf. However, a crucial factor to be noted is that the Lakshadweep Waqf Board was not even made a party to the proceeding. The cause title before the High Court does not reveal the Lakshadweep waqf board having been made a party to the proceedings. As per Section 90 of the Waqf Act, 1995, it is the duty of the court or tribunal to issue notice to the board concerned.
The purpose for impleading the board as a party is not far to see. It is the domain of the waqf board to appoint and remove mutawalli. If any binding verdict is to be given on the parties, it is essential that the waqf board should be made a party to the proceedings. As per Section 90, the waqf board can move the court to have the decree declared as null and void. In addition, the waqf board can also assert that as it is not a party to the proceeding, the declaratory decree granted by the High Court and confirmed by the Supreme Court is not binding on it.
The unfortunate aspect of this decision is that neither the High Court nor the Supreme Court had noticed the relevant statutory provisions. We may remind ourselves that a Constitution Bench in A.R Antulay v R.S Nayak has held that even the orders of the Supreme Court can incur the judicial epithet of "per incuriam" if the judgment is passed in ignorance of the relevant statutory provisions.
It is submitted that the decision in Aliyathammuda Beeethathebiyyappura does precisely this and may, therefore, require a closer re-examination in the future.
 N.V. Ramana, Mohana Shanthagoudar and Ajay Rostagi JJ
 2008(1) KHC 683 (DB) (Kurian Joseph and Harun-ul-Rashid JJ)
 Notification and the registration of Waqf under Section 6
 S. Athar Husain and S. Khalid Rashid, Wakf laws and Administration in India p.82
 R.H. Ellis, A short account of the Laccadive Islands and Minicoy, Superintendent, Government Press, Madras, 1924, reprinted by Asian Educational Series, New Delhi, 1992 page 66. Also see, Rolland E. Miller, Mapilla Muslims of Kerala Orient Longmans, Madras, 1976, p.232
 Supra n.3, Paragraph 24
 (1872) 9 Bom. H.C.R. 19
 The person who creates the waqf
 The document creating the waqf
 In re Mohomed Haji Haroon Kadwani, AIR 1935 Bom. 253 = (1935) 37 Bom.L.R. 396 = 156 I.C. 655 – this view was taken in case where by a will of one Haji Abdulla Hussein, one third of his estate was set apart for good and public charity. It was not a case of a mosque. Still the view was taken there was no right of hereditary succession. Also see, Mohd Minhajuddin and Ors vs. State of Maharashtra, 2006 (1) Mh.L.J. 163 (Paragraph 18)
  1 M.H.C.R. 63 – as extracted from Ameer Ali, Supra n. 19 at page 449.
 Mohammad Ibrahim Khan vs. Ahmad Said Khan and Ors. 6 I.C.219 = (1910) ILR 32 All. 503
 Hanafi school does not differ much in matters of succession from the shafi'I school
 Section 4 of Kazis Act, 1880 - Nothing herein contained, and no appointment made hereunder, shall be deemed--
(a) to confer any judicial or administrative powers on any Ka'zi' or Naib Ka'zi' appointed hereunder; or
(b) to render the presence of a Ka'zi' or Naib Ka'zi' necessary at the celebration of any marriage or the performance of any rite or ceremony; or
(c) to prevent any person discharging any of the functions of a Ka'zi'.
 Section 539 of the Code of Civil Procedure, 1888 or Section 92 of the Code of Civil Procedure, 1908
 Palani Muslim Dharma paripalana Sangam v. T.N. Wakf Board, (1975) 1 MLJ 201
 See, on scope of scheme decrees and power of waqf board under Waqf Act, 1995 - Nagore Dargah v. Haja Noordeen Sahib & others, 2018 (3) CTC 801 (DB) (per Seshasayee J)
 Section 25 (2) & Section 32 (1) Proviso - In exercising the powers of giving directions under sub-section (1) in respect of any waqf, the Board shall act in conformity with the directions by the waqf in the deed of the waqf, the purpose of waqf and such usage and customs of the waqf as are sanctioned by the school of Muslim law to which the waqf belongs.
 Section 26 (1) of the Waqf Act, 1995
 The reason for excluding agricultural lands and charitable and religious endowments was because the Central legislature did not have the legislative competence. Agriculture fell under Entry 20 of List II and Charitable and religious endowments fell under Entry 34 list II of Seventh Schedule of Government of India Act, 1935.
 (1962) 1 SCR 67 : AIR 1961 SC 808
 Supra n. 19
 Section 26 (1) of the Waqf Act, 1995
 See generally, Inheritance, Succession and the Customary law in a Sufi establishment of Awadh by S.Z.H.Jafri, Proceedings of the Indian History Congress, Vol. 53 (1992), pp. 321-327
 A survey of Kerala History, Sahitya Pravarthaka Co operative society, National Book Stall, Kottayam, 1967, pages 135 – 136 & 156 - 157
 Buhari Koya v. Kasimkoya Haji ILR 1979 (1) Ker. 730 – Paragraph 9
 Lakshadweep Development report – Annexure A.2 Page 134, published by the Planning commission, Government of India, New Delhi, 2007
 Though these regulations were published in 1965, they came into force only in 1967 with effect from 01.11.1967.
 This was as per by Regulation 8 of 1965, s. 3 and Schedule I.
 See supra, note22. As regards the classic judgment of P. Janaki Amma J on customary law prevailing in Amini and other islands of Lakshadweep, it is not affected at all. This is because the purport of the Shariat Act was not to apply to such cases at all. Though a learned single judge of the Madras High court held that on passing of the Shariat Act, Marumakkathayam law stood abolished, these observations were held inapplicable.
 4. (1) Any law in force in the Islands or any area thereof corresponding to any Act referred to in section 3 or any part thereof shall stand repealed as from the coming Into force of such Act or part in the Islands or such area, aa the case may be.
 90. Notice of suits, etc., by courts.—
(1) In every suit or proceeding relating to a title to or possession of a wakf property or the right of a mutawalli or beneficiary, the court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding.
(2) Whenever any wakf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, notice shall be given to the Board by the court, Collector or other person under whose order the sale is notified.
(3) In the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf.
(4) In the absence of a notice under sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other authority under whose order the sale was held.
 Section 32 (2)(g) of the Waqf Act, 1995
 See generally, Yashpal v. Allatala Maliq Waqf, AIR 2006 All. 115 holds that it is not necessary to implead the waqf board in a suit for eviction. However, it has not dealt with the issue as to whether the decree is binding on the Waqf Board.
  2 SCC 602