REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.3382-3383 OF 2019

(Arising out of S.L.P (C) Nos. 32285-32286 of 2018)

HAMMAD AHMED ........APPELLANT

Versus

ABDUL MAJEED & ORS. ........RESPONDENTS

J U D G M E N T

Hemant Gupta, J.

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, 1908

1

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

1 Code

2 Hamdard

1

death of previous undisputed Chief Mutawalli - Abdul Mueed on

19.03.2015.

4. The Appellant filed Civil Suit No. 211 of 2017 on 08.05.2017,

whereas Respondent No. 2 filed Civil Suit No. 162 of 2017 on

29.03.2017. The suit of the Appellant is for declaration, prohibitory

injunction and for other reliefs. The Appellant asserted that after

death of Abdul Mueed, Chief Mutawalli on 19.03.2015, the Appellant

being living senior most male direct successor of Wakif Mutawalli took

over the Office of Chief Mutawalli on 20.03.2015 when an office order

was issued to this effect by him. The Respondent Nos. 1 and 2 are

the defendants in the suit filed by the Appellant. Such Respondents

are sons of former Chief Mutawalli late Shri Abdul Mueed, elder

brother of the Appellant. The Respondent No. 1 – Abdul Majeed also

issued an office order on 23.03.2015, appointing himself as Chief

Mutawalli. The Respondent No. 1 issued letters on the basis of such

declaration on 23.03.2015 to various authorities including Banks. It is

in this background; the Appellant has sought declaration that the

Respondent No. 1 is no longer Mutawalli under the Wakf Deed

3

dated

28.08.1948 as amended from time to time on account of breach of his

obligations under the said Deed and to issue a decree in nature of

permanent injunction restraining Respondent No.1 to continue as

Mutawalli of Hamdard. The Appellant also claimed that all decisions,

orders issued by Respondent Nos. 1 and 2 jointly or severally after

20.03.2015 are null and void and of no effect.

3 Deed

2

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 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.

3

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 the plaintiff. They

shall also disclose and handover the ERP

(Enterprise Resource Planning) Admin Control

Password.”

4

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 Deed

4

, 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

4 1973 Deed

5

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 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.

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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”.

6

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:

“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

7

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-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

8

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.

13. The Appellant relies upon the declarations in the nature of

amendments in the 1948 Deed carried on 02.07.1973 as to who

9

should manage the affairs of the Wakf after the Wakif Mutawalli. The

relevant extracts from the declaration issued by the Wakif Mutawalli

read as under:

“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:”

xxx xxx xxx

10

“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 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.”

xxxxxxxxx

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

11

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).”

xxxxxxxxx

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.

12

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. 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.

xxxxxxxxxx

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).

13

xxxxxxxxx

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

14

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

(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

15

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

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.

16

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

17

1948 Deed, which contemplate that the Wakif, his sons and grand-

children would not get anything as income but could receive

remuneration only for 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….

xxxxxx xxx

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

18

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 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

19

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 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

20

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. Tajuddin

5

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

5 (2008) 8 SCC 12

21

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:

“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 30

th

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 Others

6

. 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 Madras

7

. The reliance is also

placed upon a judgment reported as Wander Ltd and Another v.

6 (1990) 2 SCC 117

7 (1975) 2 SCC 730

22

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 Others

9

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. Yagappa

10

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 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.

8 (1990) Suppl. SCC 727

9 (2013) 9 SCC 221

10 (1971) 3 SCC 808

23

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

24

v. Arora Properties and Investments and Another

11

. 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 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

11 2018 (10) Scale 33

25

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

Bahadur

12

, 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)

26

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

27

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 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 a n

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.

28

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 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.

29

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

Clause 3:This clause is

substituted by the following text:

30

descendant in line of succession (of

Wakif Mutawalli) and then holding

an office of Mutawalli will be the

Chief Mutawalli.

“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.”

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 Kaushish

13

. 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

13 (1973) 2 SCC 825

31

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.

Monypenny

14

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.”

Brett, L.J., in Re Meredith, ex. p. Chick

15

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 Others

16

:

“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

14 (1861) 9 HLC 114, 146

15 (1879) 11 Ch D 731, 739

16 AIR 1959 SC 24, 29

32

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

33

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. 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.

34

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 Bahadur

17

. 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 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

17 (1921) 14 L.W. 128 (F.B.)

35

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

36

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 injunction. In Deoraj vs. State of Maharashtra and

Others

18

, 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

18 (2004) 4 SCC 697

37

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 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 appeal is allowed. The order passed

by learned Division Bench on 27.11.2018 is set aside and that of the

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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.

……..….………………………………J.

(UDAY UMESH LALIT)

….………..…………………………..J.

(HEMANT GUPTA)

New Delhi

April 3, 2019.

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