Case Note & Summary
The dispute pertains to the office of mutawalli (manager) of the Andrott Jumah mosque in Lakshadweep, a public waqf. The respondents, members of the Pattakal family, claimed a customary right to the office as descendants of Saint Ubaidulla, who built the mosque and was its first mutawalli. The appellants, including members of the Aliyathammuda tharawad (claiming to be khateebs) and representatives of local residents, contended that the mosque was managed by an elected committee and that the respondents had no hereditary right. A compromise decree in 1981 in O.S. No. 10/1974 had purportedly settled management by a committee, but the respondents filed O.S. No. 1/1998 seeking declaration of their customary right. The Waqf Tribunal dismissed the suit, holding the compromise decree void but finding no proof of custom. The High Court reversed, decreeing the suit and dismissing the appellants' suit O.S. No. 1/2001. The Supreme Court considered two issues: whether the High Court exceeded revisional jurisdiction under Section 83(9) of the Waqf Act, 1995, and whether the respondents proved their customary right. The Court held that the High Court's interference was justified as the Tribunal's findings were perverse. On custom, the Court found that the respondents produced documentary evidence including a Gazette notification (Ex A3) and Wakf register entries (Ex A4, A5) showing their predecessor as mutawalli, and no evidence showed anyone else functioning as such. The Court rejected arguments that the custom was abrogated by the committee or compromise decree, holding that a long-established custom requires extended conduct to be abrogated. The appeals were dismissed, affirming the High Court's decree.
Headnote
A) Waqf Law - Customary Right to Office of Mutawalli - Proof of Custom - The respondents claimed a customary right to the office of mutawalli of the Andrott Jumah mosque based on descent from Saint Ubaidulla, the first mutawalli. The Supreme Court examined whether such custom was pleaded and proved. The Court held that the respondents had produced sufficient documentary evidence including Gazette notification (Ex A3), Register of Wakfs (Ex A4), and receipt for wakf registration (Ex A5) showing their predecessor as mutawalli, and that no evidence showed anyone else functioning as mutawalli. The Court found that the High Court correctly decreed the customary right. (Paras 2-6, 10-12) B) Civil Procedure - Revisional Jurisdiction - Section 83(9) of Waqf Act, 1995 - Scope - The appellants argued that the High Court exceeded its revisional jurisdiction by reappreciating evidence. The Supreme Court held that the High Court's interference was within the scope of revision as the Tribunal's findings were perverse and based on no evidence. The Court noted that the High Court did not act as a first appellate court but corrected errors apparent on record. (Paras 8, 11) C) Waqf Law - Compromise Decree - Validity - Order XXIII Rule 3B CPC - The compromise decree dated 16.02.1981 in O.S. No. 10/1974 was held void by the Tribunal and High Court as no leave of court was obtained and no notice given to the respondents' family. The Supreme Court agreed, noting that the decree was not binding on the respondents. (Paras 4-6) D) Evidence - Presumption of Regularity - Section 114(e) of Indian Evidence Act, 1872 - The appellants argued that the compromise decree was valid due to presumption of regularity. The Court rejected this, holding that the presumption does not apply when the decree is ex facie void for non-compliance with mandatory provisions. (Para 8) E) Custom - Abrogation - The appellants argued that the respondents' customary right was abrogated by the formation of a committee and compromise decree. The Court held that a long-established custom cannot be abrogated by a mere individual declaration or temporary deviation; it requires a course of conduct over an extended period. (Paras 9-10)
Issue of Consideration
Whether the High Court exceeded the scope of its revisional jurisdiction under Section 83(9) of the Waqf Act, 1995; and whether the respondents have pleaded and proved that they have a customary right to the office of mutawalli in the Jumah mosque.
Final Decision
The Supreme Court dismissed all appeals, affirming the High Court's judgment that the respondents have a customary right to the office of mutawalli of the Andrott Jumah mosque. The High Court did not exceed its revisional jurisdiction.
Law Points
- Customary right to office of mutawalli
- Revisional jurisdiction under Section 83(9) of Waqf Act 1995
- Proof of custom
- Validity of compromise decree under Order XXIII Rule 3B CPC
- Presumption under Section 114(e) of Indian Evidence Act 1872
- Abrogation of custom
