CIVIL APPEAL NOS. 3382-3383 OF 2019
2019 (14) SCC 1
FACTS:
- Hamdard was founded by Hakim Hafiz Abdul Majid in 1906. He died in 1922, and after that, a deed was executed in 1948 by his wife and two sons to ensure succession by the eldest son.
- In 1964, the eldest son, Haji Hakim Abdul Hamid, became the sole Wakif Mutawalli and appointed his sons, namely, Abdul Mueed and Hammad Ahmed, as Mutawallis.
- In 1955, two grandsons, Abdul Majeed (son of Abdul Mueed) and Hamed Ahmed (eldest son of Hammad Ahmed) were appointed as the fourth and fifth Mutawallis.
- A Board of Mutawallis with Abdul Mueed as Vice Chairman, his son Abdul Majeed as Secretary, and Hammad Ahmed as Senior Mutawalli was constituted on 04.07.1995.
- Differences over the Chief Mutawalli post cropped up following the death of Abdul Mueed. The Delhi High Court’s single bench decision in 2017 favoured Hammad, which was set aside by a Division Bench. Hammad Ahmed had approached the Supreme Court for interim relief.
ISSUES:
The issues that were raised in this court are as follows:
- Whether the order dismissing the Appellant’s application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, as granted by the Single Bench, suffers from any valid challenge on appeal before the Division Bench.
- Whether lineal male primogeniture is applicable under Muslim personal law regarding the succession of the Chief Mutawalli.
- Whether the deed interpretation supports the Appellant’s claim to be the rightful Chief Mutawalli.
CONTENTION
Petitioner’s Argument
It was urged by the appellant for the appointment of the Chief Mutawalli in a Wakif Mutawalli, Hamdard, based upon the 1948 Deed. According to the appellant, the rule of primogeniture is not contemplated by the deed, as amended in 1973, by the Wakif Mutawalli. It is laid down in the deed that the Wakif, his sons, and grandchildren of the Wakif would only be paid in return for services they rendered to the Waqf. It is also the contention of the Appellant that the First Chief Mutawalli is to be appointed by the Wakif Mutawalli and the Chief Mutawalli is the President of the Majlis-e-Ayan. The Appellant also contends that Respondent No. 1 need not file any substantive suit to retain the control over the Organisation since he already has the control and reports are sent to him. On his part, the appellant contended that he had the relevant qualifications for the post of Chief Mutawalli based on the 1948 Deed and the amendments made in 1973. Firstly, the question which falls into consideration is whether the rule of primogeniture is applicable in the case of Muslims under Personal Law.
Respondent’s Argument:
It was submitted by the respondent that the judgment in Faqruddin v. Tajuddin held that the rule of primogeniture applied, and hence Abdul Majeed was not entitled to be Chief Mutawalli. The Respondents have submitted that the Division Bench’s order is only on issues relating to Chief Mutawalli and has nothing to do with interim injunction applications. They have submitted that the Court will not issue interim mandatory relief which would create a new state of affairs and relied on Samir Narain Bhojwani v. Arora Properties and Investments and Another The declaration by Respondent of himself as Chief Mutawalli did not amount to a guarantee by itself of status existing on time of the filing of the suit; it was further urged that the language of the amended Deed stood distinct from the 1948 Deed which did not envisage a “line of succession” for Wakif Mutawalli.
RATIONAL
Succession of the Wakf and its Management provided under the Waqf Act, 1973. It starts by stating that there are at least one and not more than five Mutawallis including the Wakif Mutawalli and the Chief Mutawallis. The Chief Mutawalli is the senior most male descendant of the Wakif Mutawalli holding an office of the Mutawalli. After the Wakif Mutawalli ceases to be Mutawalli, every Chief Mutawalli shall have all the rights and duties of administration of the Wakf and the power to make regulations therefor as provided in this Deed for the Wakif Mutawalli.
The Single Bench found no force in the contention that the pending criminal cases disqualified the Appellant from being appointed as Chief Mutawalli, insofar as Clause 6(2) of the Waqf Deed, 1973, provided for disqualification only if a person has been convicted of an offense involving moral turpitude. The appointment of trustees for the trust will continue from generation to generation, with the eldest son being appointed as the trustee. If, however, no son is available from the family, one will be appointed as trustee, and if the daughter’s son is not capable, any non-family person can be appointed as a trustee. In terms of the Deed, the senior most male descendant in the line of succession shall be the Chief Mutawalli. It is in these circumstances that upon the death of Wakif Mutawalli and later on of the first Chief Mutawalli Abdul Mueed, the Appellant claimed to be the Chief Mutawalli being the senior most male descendant. The salaries of other Mutawallis are fixed by the Wakif, Mutawalli/Chief Mutawalli while the salary of subsequent Chief Mutawalli is fixed by Majlish-e-Ayan. Division of rights and duties among Mutawallis is made by Chief Mutawalli for efficient management of the Wakf. The Board of Mutawallis supervises, monitors, and reviews the functioning of Hamdard Dawakhana, Wakf finalising and approving budgets, working plans, projects, and major policies. Notwithstanding disputes and family settlement and an earlier settlement with the Board of Mutawallis, the plain consistent reading of the 1973 Deed supports the Appellant’s case for Chief Mutawalli.
The amendments to the Deed, in the form of the full document dated 1973, still maintain the lineal principle of devolution to the senior most male descendant as Chief Mutawalli, further supported by the Wakif Mutawalli’s equal representation of his two sons and their descendants within the management structure. The array of arguments on delay in disputing management mechanisms and challenging the legitimacy of the order under Order XXXIX Rules 1 and 2 of the Code were unintelligible. The Courts focused mainly on the agreed primary question as to who shall be appointed Chief Mutawalli and affirmed the case of the Appellant on the strength of the provisions of the Deed and rules of succession
DEFECTS OF LAW
The petitioner may be granted further relief as the Court may deem proper apart from the reliefs prayed for in the petition. The concept of succession in the Waqf is that the Nazir, who is next in rank to the Chief Mutawalli is appointed during the lifetime of the Chief Mutawalli to avoid any confusion and dispute at the time of succession. The Wakif Mutawalli may, during his lifetime, appoint or remove the Trustees and alter conditions regarding the share of emoluments and distribution and the mode of succession.
The 1948 Deed as modified in 1973 gave that the oldest male descendant holding an office of a Mutawalli shall be a Chief Mutawalli. The Chief Mutawalli inherits the Wakif Mutawalli’s administrative rights and duties, including setting remunerations for other Mutawallis, with exceptions handled by the Majlis-e-Ayan. This Deed is also emphatic that the properties of Hamdard will vest in the governing body and not under the Waqf Act, 1995. In case of vacancy, this document elaborately lays down the procedure for the appointment of the Chief Mutawalli so that no vacuum is created in the governance or management of the Waqf.
INFERENCE
This case relates to a dispute over the issue of the appointment of Chief Mutawalli in the Hamdard, which is governed by an elaborate set of deeds in 1948 and as amended in 1973. The question incompetent here is whether lineal male primogeniture would therefore apply under the Muslim personal law of succession by seniority amongst males. The Single Bench ruled in favour, declaring Hammad Ahmed to be the Chief Mutawalli upon the death of Abdul Mueed, the undisputed Chief Mutawalli. Such a ruling was challenged before a Division Bench which decided against the Single Bench and hence Hammad Ahmed has come to the Supreme Court.
The Supreme Court judgment was based on an interpretation of the 1948 and 1973 deeds. The judgments therefore, hinged on the provisions in the deeds which state that ‘the eldest male descendant who holds the office of a Mutawalli succeeds as Chief Mutawalli’. The Court brushed aside arguments founded on criminal cases against Hammad Ahmed and reaffirmed that only convictions for offenses involving moral turpitude would disqualify him under the terms of the 1973 Deed. It also pointed out the need for strictly following the procedure laid down in the deeds about succession and management of the Waqf, so that continuity and stability could be ensured in the governance. This judgment further crystallized the principle of lineage-based succession enshrined in the deeds, wherein it said that successors will be appointed by the Wakif Mutawalli and organizational integrity will be maintained by him within the setup of Hamdard Laboratories.
Case Comment by:
Uditya Kumar
The ICFAI University, Dehradun