(2012) 246 KLR 950
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. RAMKUMAR & K. HARILAL, JJ.
A.F.A. No. 53 of 1998
Personal Laws - Privatization of God and God's property and a scramble for administration are all undesirable trends which in the long run will not be conducive to the democratic running of such religious institutions. The declaration prayed for to the effect that the plaint schedule Mosque and its properties belong to the Puthiyapura tarwad of the plaintiff, is refused.
Muslim Law - Muthawalli - Status, rights and duties - Whether Muthawalliship can be hereditary - Discussed.
Judicial Evaluation - Lakshadweep Islands - Discussed about the geographical location, the custom and manners and the religious habits and the law of inheritance of the people of the Lakshdweep Islands in general and Androth Island in particular.
Muslim Law - Whether a suit by a Karanavan can be deemed to be instituted on behalf of his tarwad ? Held, In order that a decree against a Manager or a Karanavan may bind the joint family or tarwad or other members of the joint family or tarwad, it is enough that the Manager or Karanavan sues or is sued as such Manager or Karanavan. It is not even necessary, where the Manager or Karanavan is the plaintiff, that the plaint should state in distinct terms that he is acting as the Manager or the Karanavan or where he is the defendant, the plaint should state that he is being sued as the Manager or Karanavan.
Muslim Law - Whether the plaintiff in his capacity as only the de facto Karanavan could institute the suit ? Held, the question as to whether it was the plaintiff or somebody else who was entitled to represent the tarwad as its Karanavan, could at best, between the plaintiff and other members of his tarwad. It is not open to a stranger to raise any such contention.
- BY ADVS.SRI.G.SREEKUMAR (CHELUR)
- SRI.K.RAVI (PARIYARATH)
- SMT.T.RESMI DAMODARAN
- By Senior Advocate Sri. M.C. Sen for Ist respondent ,
- By Senior Adv. S.V. Balakrishna Iyer & Adv.
- Sri. P.B. Krishnan for R5 to 16
- BY ADVs. M/s. NARAYANIKUTTY CHETTOOR
- K.K.MOHAMED RAVUF
- JOE KALLIATH
- SMT.SHAHNA KARTHIKEYAN
Dated this the 10th day of April 2012
Sl.No.. Inner Titles Para No.
1. Who are the appellants ? 1
2 Nature of suit 2
3 The plaintiff's case 3
4 Defence of D1 & D2 4
5 Defence of D3 5
6 Defence of D4 6
7 Stand taken by D5 to D14 7
8 Is the suit a representative suit 8
9 The Trial 9 & 10
10 The trial Court's verdict 11
11 First appeal and Cross-objection to the High Court and their fate 12
12 This intra-court appeal 13
13 Arguments of the contesting respondent (D4) 14
14 JUDICIAL EVALUATION 15 to 36
A Lakshadweep Islands 16 to 23
i) Location and Geography 16
ii) The people 17 & 18
iii) Administration of Justice 19 & 20
iv) The present judicial set up 21
v) The offcial historiography 22
a) Conversion to Islam
b) Administration under the Arakkal Principality
c) Property and inheritance
d) Religious beliefs and practices
B Androth Island 23
i) Its Geography
ii) William Logan's account
Position and extent
People, their customs and occupation
Religion and Mosques
C. Buhari Koya's Case - a "locus classicus" 24
D. ANALYSIS OF THE CONTENTIOUS ISSUES IN 25 to 28
i) Whether a suit by a Karanavan can be
deemed to be instituted on behalf of his 26
ii) Whether the plaintiff in his capacity as only
the de facto Karanavan could institute the 27
iii) Appreciation of the evidence 28
E. Dedication of a Mosque and the sanctity of prayers 29
F. Muthawalli - his status, rights and duties 30 to 33
G. Whether Muthawalliship can be hereditary ? 34
H The first appellate Court was wrong 35
I OUR CONCLUSION 36
15. Glossary of terms 37
16. Not merely a pious wish 38
Who are the appellants ?
The plaintiff (Puthiyapura Sheik Koya Thangal) in the suit O.S. No. 4 of 1989 on the file of the Subordinate Judges' Court, Lakshadweep at Kavaratti Island filed this intra-court appeal under Sec. 5 of the Kerala High Court Act, 1958. Pending this appeal, the said appellant/original plaintiff died on 27-1-2003. Thereupon Puthiyapura Syed Mohammed Jalaluddin Thangal filed I.A. No. 1750/2003 for substituting his name in the place of the original appellant and the same was allowed on 11-8-2005. Subsequently,one Kunhi Seethi Koya claiming himself to be the Karanavan of the second tavazhi of Puthiyapura tarwad filed I.A. No. 2922/03 to implead him as the second appellant. The said application was allowed on 24-01-2012 without prejudice to the contentions of the first respondent.
NATURE OF THE SUIT
one:-2. The aforementioned suit instituted on 3-5-1989 was
(i) For a declaration that the plaintiff namely, Puthiyapura Sheik Koya Thangal has been, and is, the Muthawalli of the plaint schedule mosque known as Mohiyudheen Palli and its properties comprised in Sy. No. 117/11 of Androth Island, that the said mosque and its properties belong to the Puthiyapura tarwad of the plaintiff, that the office of the Muthawalli and Sheik of the said mosque vests in the said tarwad on hereditary rights;
(ii) For a perpetual injunction restraining the defendants from causing obstruction to or interfering in any manner in the holding and continuing the office of the Muthawalli and Sheik of the plaint schedule mosque and its properties by the plaintiff and the succeeding Karanavans;
(iii) For a mandatory injunction directing the third defendant namely, the Lakshadweep Wakf Board to make the requisite entries in the Wakf Register showing the plaint schedule Mosque and its properties as belonging to the plaintiff's tarwad and the plaintiff as its Muthawalli and Sheik and the said office as hereditary in nature vested in the Puthiyapura tarwad of the plaintiff; and
(iv) For a direction to defendants 1 and 2 namely, the Union of India and the Administrator, Union Territory of Lakshadweep to give requisite police aid to the plaintiff for continuing in his office of the Muthawalli and Sheik of the Mohiyudheen Mosque without any illegal obstruction and interference caused by any other islander.
THE PLAINTIFF'S CASE
3. The case of the plaintiff can be summarised as follows:_ The plaint schedule property comprised in Sy. No. 117/11 of Androth Island belongs in ancient jenm right to the tarwad of the plaintiff called "Puthiyapura tarwad". The former Karanavan and the Manager of the Plaintiff tarwad constructed a mosque therein by name "Mohiyudheen Palli". Ever since the construction of the mosque, religious festivals and ceremonies like Ratheeb, Moulood, Kuthubiyath, Khattam etc. used to be conducted by the Karanavan of the tarwad. It was decided that the succeeding karanavans and managers of the tarwad should duly hold the office of Muthawalli and Sheik of the Mosque and its properties. That was the practice followed in all the islands of Lakshadweep . One Sri. Syed Sheikoya Thangal was the last karanavan and manager of the plaintiff's tarwad., He used to be mostly away in Ceylon in connection with his function and duties as a priest. Therefore, even during his life time, under his instructions and authorisation the plaintiff was acting, conducting, functioning and exercising the rights and discharging the duties of the karanavan and manager of the tarwad. The plaintiff was in that capacity functioning as the Muthawalli and Sheik of Mohiyudheen Palli. Sri. Syed Sheikoya Thangal died about 15 years back and on his death, the plaintiff became the karanavan and manager of Puthiyapura tarwad and ex-officio the Muthawalli and Sheik of the mosque. A portion of the plaint schedule property is used as a cemetery. It is only after getting the permission of the plaintiff that dead bodies used to be buried in the said cemetery. It was the plaintiff who had taken electric connection to the mosque and he was paying the electricity charges. All the expenses for the conduct of the affairs of the mosque are met by the plaintiff. While so, some of the local inhabitants misusing their political affiliation and influence, started creating trouble in the administration and management of the mosque . Therefore, the plaintiff was constrained to move the Hon'ble High Court of Kerala for police aid. The mosque and its properties have not been registered by the Wakf Board represented by the 3rd defendant who has a duty to register the same. The plaintiff issued Exts. A25 to A27 notices to the defendants who were served on 14-2-1989. The defendants sent a reply raising untenable contentions. The plaintiff was not aware of Ext. B6 notification alleged to have been issued in the Gazette dated 1-11-1968. The said notification is bad, illegal, without jurisdiction, void and not binding on the plaintiff or his tarwad. Hence, the suit.
DEFENCE OF D1 & D2
4. The second defendant (the Administrator, Union Territory of lakshadweep) filed a written statement disputing the plaint claim and contending inter alia as follows:- The plaintiff is not the Muthawalli and Sheik of the Mosque. As per Ext. B6 notification published in the Gazette the Amins and Karanavans of the Androth Island are and have been the Muthawalli of the Mosque. The major portion of the expenses of the mosque is met by contributions. The Muslims of Androth Island consist of two groups:- i) Jumayath Himyathi Shariatil Islamiya ("JHSI" for short) and (ii) Lakshadweep Shareeath Pravarthaka Sambarkka Samithi ("LSPSS" for short). The dispute about the mosque started in the year 1986 when the JHSI to which the plaintiff owes his allegiance passed a resolution and the Khasi of Androth declared that the followers of LSPSS are non- Muslims and they have no right to enter Mosques, Madrassas etc. Police protection was sought for implementing the above resolution. The Executive Magistrate was constrained to take proceedings under Sections 144 and 145 Cr.P.C. with regard to the Juma Mosque in question . The decision of the JHSI and the Khasi was questioned before the Hon'ble High Court in Crl.R.P. 10/1987., The High Court held that the right of a Muslim to worship in a Mosque cannot be denied on the basis of sect . The plaintiff is demanding police protection for excluding a section of people. It is against the orders of the High Court. Due to division on the basis of faith criminal cases have increased in Androth island since 1986. This defendant is an unnecessary party to the suit . The suit is bad for non-joinder of other necessary parties. Till the year 1984 the annual religious functions in the mosque were conducted under the Amin . In the year 1985 the then Amin died and the plaintiff organized the religious functions. In the year 1986 the dispute between the JHSI and LSPSS erupted. The plaint schedule property is a Wakf. The plaintiff has no right of management. The suit which is devoid of any merit is to be dismissed.
The first defendant ( Union of India ) filed a memo adopting the contentions of the 2nd defendant.
DEFENCE OF D3
5. The third defendant (the Lakshadweep Wakf Board ) filed a written statement contending inter alia as follows:-
The plaintiff is not the Muthawalli of the plaint schedule mosque. There is no hereditary right of Muthavallyship in favour of the plaintiff. The suit is barred under Sec. 55 (E) of the Wakf Act, 1954. Neither the plaintiff nor any of his karanavans ever applied for registration of the plaint schedule mosque which is a Wakf. The Lakshadweep Wakf Board had published a list of Wakfs within its jurisdiction in the Gazette dated 1-11-1988 after conducting proper enquiries . The said list was published under Sec. 5 of the Wakf Act, 1995. In that notification the Mohiyudeen Palli is stated as belonging to the people of Androth Island and the Muthawalli of the said Mosque is shown as the Amin and Karanavans . So far nobody had objected to the said notification. The Civil Court has no jurisdiction to try the suit which is within the cognizance of the Wakf Tribunal by virtue of Sec. 6 of the Wakf Act, 1995.
DEFENCE OF D4
6. There were only three defendants in the suit as originally instituted. One P.P. Koyammakoya styling himself as the President of the Mohiyudheen Palli Committee filed I.A. Nos. 94 and 99 of 1989 before the trial Court seeking to implead him in the suit as well as in the injunction application (I.A. 79 of 1989) The said applications were dismissed by the trial Court . Aggrieved by the trial Court's order the said Koyammakoya filed C.R.P. 1944 of 1989 before this Court. As per Order dated 21-11- 1989 this Court allowed the said C.R.P. directing impleadment of the said Koyammakoya in the suit as well as in the injunction application. That is how the said Koyammakoya was impleaded as the Addl. 4th defendant . He resisted the suit contending inter alia as follows:-
The plaint schedule property including the Mohiyudheen Palli does not belong to the Puthiyapura tarwad of the plaintiff. The Mosque was not constructed by the karanavan of Puthiyapura tarwad as claimed by the plaintiff. There was a partition in Puthiyapura tarwad and thereafter the said tarwad is extinct. The plaintiff is ,therefore, not a member of the Puthiyapura tarwad. None of the earlier karanavans of Puthiyapura tarwad nor the plaintiff had ever officiated as the Muthawalli or Sheik of the Mohiyudheen Mosque . Similarly, they have not conducted any religious function in the mosque. The plaint allegation that the office of Muthawalli and Sheik of the said mosque is to be enjoyed by the karanavans of Puthiyapura tarwad and it is a heritable right , is false. The Lakshadweep islands do not know of a custom of heritable Muthawalli and Sheik. In most of the mosques there will not be a Sheik. The plaint allegation that the permission of the plaintiff is necessary for burying the dead in the graveyard attached to the plaint schedule mosque is false. No such permission is required for burying a dead Muslim in a graveyard attached to a mosque . That is the custom followed in Androth island as well. The plaint schedule property is the acquisition of the islanders. At the time of the construction of the mosque the Amins and the karanavans were the rulers of the island. As such, the Amin and the Karanavans were appointed as the Muthawallis of the Mosque. That system was continued till the year 1970 when the office of the karanavans was abolished. From 1970 to 1985 the Amin alone managed the mosque as the Muthawalli. In the year 1985 Komalam Muthukoya who was the last Amin from Androth died. Thereafter the Amins were appointed from other islands. Hence, the islanders of Androth island constituted a committee under Sri. Aliyathara Syed Mohammed to manage the mosque and its properties. While so, a section of the people in the island formed the JHSI and tried to interfere with the management of the mosque. Thereupon , the islanders formed the 4th defendant/committee (Mohiyudheen Palli Committee) on 2-11-1988 to manage the mosque. So far, no bye-law has been framed for the said committee. At present, no one other than the 4th defendant has any right to manage the plaint schedule mosque and its properties. The electric wiring in the mosque was got done by the Amin and the Karanavans who also obtained the electric connection to the mosque. The last Amin Komalam Muthukoya was a close relative of the plaintiff. Hence, he might have concocted documents to suit the claim of the plaintiff. The plaint allegation that the plaintiff was unaware of the Gazette notification is false. The plaintiff is not entitled to any of the reliefs prayed for and the suit is liable to be dismissed.
STAND TAKEN BY D5 TO D14:
7. Defendants 5 to 14 who responded to the public notice under Order 1 Rule 8 C.P.C. filed written statements supporting the plaint averments.
IS THE SUIT A REPRESENTATIVE SUIT ?:
8. The suit was not instituted in a representative capacity by the plaintiff. However, Koyammakoya, the 4th defendant had filed I.A. No. 136 of 1989 before the trial Court prior to his impleadment seeking permission under Order 1 Rule 8 (3) C.P.C. to defend the suit in a representative capacity on behalf of all the people representing the Mahl in which the disputed Mohiyudheen Mosque is situated. The said application was dismissed on 2-09- 1989. However, after the High Court allowed C.R.P. 1944 of 1989 on 21-11-1989 and the said Koyammakoya was impleaded as the 4th defendant in the suit, he had filed I.A. No. 138 of 1990 again under Order 1 Rule 8 (3) read with Sec. 151 C.P.C. on 12-7- 1990. The said application was allowed on 8-8-1990 and he was directed to publish the notice in the "Lakshadweep Times" daily. Subsequently, the draft publication was approved by the Court and a public notice was published in the "Lakshadweep Times" daily dated 10-09-1990. The publication in the Lakshadweep Times is available at 179 of the Lower Court records. The 4th defendant was thus permitted to defend the suit on behalf of and for the benefit of all persons interested in the Mohiyuddin Palli Committee. The decree will, therefore, bind all persons having the same interest in the suit.
9. The trial Court framed the following 9 issues:-
1) Whether the suit is bad for non-joinder of necessary parties ?
2) Whether the suit is bad for misjoinder of parties ?
3) Whether the predecessor karnavan of plaintiff's tharwad was the Muthawalli and sheik of the mosque in question ?
4) Whether the plaintiff was/is the Muthawalli and sehik of the mosque in the plaint schedule property ?
5) Does the office of Muthawalli and sheik vest in plaintiff and his successors as a hereditary right ?
6) Whether the plaintiff is entitled for prohibitory injunction prayed for ?
7) Whether the plaintiff is entitled for the mandatory injunctions prayed for against the defendants 1 to 3 for making the entries in the Wakf Register and for police aid ?
8) Is the jurisdiction of this Court is ousted by Sec. 55 (E) of the Wakf Act ?
9) Reliefs and costs.
10. On the side of the plaintiff two witnesses were examined as P.Ws 1 and 2 of whom P.W.1 is the plaintiff himself and P.W.2 (Sayed Fathruddeen) who is also a native of Androth Island is the nephew of P.W.1. P.W.2 knows photography and it was P.W.2 who took Ext.A32 series of photographs and proved Ext.A33 series of negatives. As per Ext.A32 (a) photograph taken by P.W.2 in July 1989 the plaintiff examined as P.W.1 is shown as officiating in his capacity as the Sheik of the plaint schedule Mosque for giving permission for Ratheeb. As per Ext.A32 (b) photograph the plaintiff in his capacity as the Sheik is chanting prayers and healing the wounds of a person who had sustained injuries during Ratheeb. Exts. A1 to A35 were got marked on the side of the plaintiff. On the side of the contesting defendants two witnesses were examined as Dws 1 and 2 of whom DW1 is the 4th defendant who claimed to be the President of the Mohiyudheen Palli Committee. DW2 (Adul Khader) who is a native of Keecheri Village of Androth Island was examined in support of the contentions of the 4th defendant. Exts. B1 to B22 were marked on the side of the contesting defendant.
THE TRIAL COURT'S VERDICT
11. The learned subordinate Judge after trial, as per judgment and decree dated 3-5-1991 partly decreed the suit as follows:-
i) The contesting defendant has not been able to show that Sec. 55 (E) of the Wakf Act, 1954 has come into force. Even if the above provision has come into force, it does not bar a suit of the present nature in which there is no prayer for the enforcement of any right on behalf of any Wakf.
ii) There is no acceptable evidence adduced by the plaintiff to prove that the plaint schedule mosque was constructed by the then karanavan of the Puthiyapua tarwad of the plaintff or that the founder made a decision that the future karanavans will be the Muthawalli and Sheik of the said mosque by way of hereditary rights.
iii) Plaintiff has failed to prove that the office of the Muthavally and Sheik of the plaint schedule mosque is to be held by the successive karanavans of Puthiyapura tarwad of the plaintiff. The plaintiff is, therefore, not entitled to a mandatory injunction directing the 3rd defendant Lakshdweep Wakf Board to amend Ext. B4 register so as to show that the office of the Muthawalli and Sheik of the plaint schedule mosque is vested in the karanavans of the Puthiyapura tarwad.
iv) The evidence in the case shows that the plaintiff was not only conducting himself as the Sheik of the mosque and attending to the religious affairs, the plaintiff was also performing acts of management of the mosque. Hence the plaintiff is the de facto Muthawalli and Sheik of the plaint schedule Mosque. Consequently defendants 1 , 2 and 4 are restrained by a perpetual injunction from causing any obstruction to the plaintiff in functioning as the Muthawalli and Sheik of the plaint schedule mosque. But the injunction will not prevent Muslims irrespective of caste or sect from entering the mosque for worship or for using the burrial ground attached to the mosque for burying the dead.
v) The plaintiff is not entitled to police protection so as to exclude any section of the Muslim public from entering the mosque.
FIRST APPEAL AND CROSS OBJECTION TO THE HIGH COURT AND THEIR FATE.
12. Aggrieved by the verdict of the trial Court the 4th defendant filed an appeal before this Court as A.S. No. 485 of 1991. Assailing that part of the trial Court verdict which went against the plaintiff, he preferred a memorandum of Cross-Objection before this Court. Both the aforesaid appeal A.S. No. 485/1991 and the Cross Objection were heard by a learned Single Judge of this Court who as per judgment dated 6-7-1998 allowed the appeal preferred by the 4th defendant and dismissed the Cross- Objection of the plaintiff. The suit was thus dismissed in its entirety holding inter alia that if at all the plaintiff had assumed the office of the Muthawalli it was only by way of trespass.
THIS INTRA-COURT APPEAL
13. It is aggrieved by the judgment and decree passed by the learned single judge that the plaintiff has preferred this appeal. We heard Advocate Sri.G. Sreekumar (Cheloor) the learned counsel appearing for the appellant/plaintiff and Senior Advocate Sri.M.C. Sen appearing for the first respondent (4th defendant) .
ARGUMENTS OF THE CONTESTING RESPONDENT (D4)
14. Advocate Sri. M.C. Sen appearing for the Ist respondent (4th defendant) made the following submissions before us opposing this appeal:-
The main prayer of the plaintiff for a declaration that the plaint schedule mosque Mohiyuddin Palli and its properties belong to the Puthiyapura tarwad of the plaintiff and that the office of the Muthawalli and Sheik of the said mosque vests in the said tarwad on hereditary rights, stand concurrently rejected by the Courts below. Eventhough the plaintiff has described himself as the karanavan and manager of Puthiyapura tarwad, the suit which is not instituted on behalf of the tarwad, was not maintainable. As a matter of fact, the plaintiff was not the karanavan of the tarwad on the date of institution of the suit. He had an elder brother by name Jalaluddin Thangal which fact is borne out by Ext. A15 O.M. of the Co-operative Registrar. Going by the extent of 0.033 Ares shown for the plaint schedule property which is less than one cent, the same cannot take in the "Mohiyuddin mosque" and its properties including the cemetery which is the description given for the plaint schedule. Admittedly, the name of the plaint schedule mosque is "Mohibyuddin Mosque". The said name itself indicates that it is a public Wakf and not a private mosque allegedly belonging to the plaintiff's tarwad. At page 66 of "A short Account of the Laccadive Islands and Minicoy" by R.H. Ellis it is observed that on every island of the Laccadive Islands (presently Lakshadweep Islands) there are three public mosques which are the Jamath, Moidin and Ujira mosques and there are many private mosques which are out of all proportion in numbers to the inhabitants and each of those private mosques has its own little tank and graveyard. Thus, from the very name of the mosque as "Mohiyuddin Palli" it can be presumed that it is a public mosque. At page 93 of the Gazetteer of India pertaining to the Union Territory of Lakshadweep edited by Sri. N.S. Mannadiar it is observed that in almost all islands there are three main mosques, the Juma, the Mohiddin and the Ujira and the Mohiddin and Ujira mosques are mainly intended for the performance of Ratheeb. At pages 22,24,and 25 of "Traditional Futures " by Sri.V. Vijayakumar also there is reference to the aforementioned classes of mosques. The case of the plaintiff that he is the Muthawalli as well as Sheik of the plaint schedule mosque has not been proved by him. Sheik and Muthawalli are not the same. The plaintiff might have been a Sheik but not a Muthawalli. Page 37 of the aforementioned book by R.H. Ellis would go to show that for each island there was an Amin selected from among the karanavans and he was having jurisdiction in petty civil and criminal cases and appeals from the Amin's decisions were to lie with the Collector of Malabar. The 3rd defendant Lakshadweep Wakf Board had contended that the plaint schedule mosque though not registered under Sections 25 and 26 of the Wakf Act, 1954 was included in the list of Wakfs under Section 5 of the Wakf Act; 1954 and the plaintiff did not apply for registration of the Wakf. A perusal of Ext. B6 notification dated 25-08-1967 will show that the Lakshadweep Wakf Board had registered the plaint schedule Wakf and had appointed the Amin and the karanavans as its Muthawalli. Since Ext.A1 Land Register itself shows that it is not final, the registration of the plaintiff as the Manager of the plaint schedule Mohiyudheen mosque in the year 1962 cannot be taken as conclusive. In Ext.A34 petition dated 8-11-1967 the plaintiff has admitted that he was the second Sheik of Mohiyudheen Palli due to the absence of the first Sheik namely Puthiyapura Syed Sheik Koya in the islands. If so, even as per the admission of the plaintiff the said Syed Sheik Koya alone could be the Sheik in respect of the mosque. In the plaint also it is admitted that the Karanavan of the plaintiff tarwad was the said Sheik Koya who was very often in Ceylon and the plaintiff used to be his delegate and agent and that the said Syed Sheik Koya died somewhere around the year 1974. Ext.A35 petition was pertaining to another Mosque (Velleri mosque, at Chemmacheri in Androth) in which the applicant therein alleging himself to be in management was seeking permission from the Androth Amin for electrification of that Mosque. Ext.A13 proceedings of the Registrar of Co- operative Societies would show that the plaintiff herein had described himself as the Sheik of the plaint schedule mosque for the purpose of Khattam which is the annual feast. That does not mean that the plaintiff should be recognized by the Court as the Sheik of the plaint schedule mosque. Same is the position with regard to Ext. A14 special permit which was obtained just two months prior to the suit. Ext.B8 order of the Sub Divisional Officer ("S.D.O." for short) refusing police aid to the plaintiff will suggest that the plaintiff could not have conducted Khattam in the premises of the Mosque in the year 1987. Moreover, Ext.B8 order further indicates that until the year 1984 religious functions were conducted under the supervision of the Amin. Ext.A15 special permit dated 21-11-1988 shows that the plaintiff was not the Karanavan but he had an elder brother by name Jalaludheen Thangal who after the death of the plaintiff pending this appeal, was impleaded as the 2nd appellant. Ext.A16 receipt dated 25- 11-1987 evidencing payment of money by the Mukri from the plaintiff described as managing the plaint schedule mosque is a self serving document. Ext.A18 suit by the then Sheik of the plaint schedule mosque instituted in the year 1922 does not advance the case of the plaintiff. Ext.A19 application 24-10- 2987 for police aid submitted by the plaintiff was rejected as per Ext.B8 order dated 2-11-1988 passed by the S.D.O. In Ext.A20 judgment dated 25-11-1987 passed by the High Court in O.P. No. 9410 of 1987 filed by the plaintiff challenging the order of the S.D.O refusing police aid to the plaintiff, the High Court had directed the S.D.O. to pass fresh orders after considering whether the plaintiff was conducting khattam namely, the annual feast in the past 3 years. Ext.B8 is the order dated 2-11-1988 passed by the S.D.O. in compliance of Ext.A20 judgment. The S.D.O. inter alia observed that after the death of the last Amin Komalam Muthukoya in the year 1985 the people of Androth got divided into two groups JHSI and LSPSS and the plaintiff was a follower of JHSI and in view of the fight between the two groups the rival groups can organise separate function outside the premises of the plaint schedule mosque. The police aid sought by the plaintiff was accordingly disallowed. Eventhough the plaintiff filed Ext.B9 appeal before the Lakshadweep Administrator against Ext.B8 order, after the impleadment of the present 4th defendant in that appeal the plaintiff filed Ext.A21 memo for withdrawal of the appeal in view of the plaintiff instituting the present suit and accordingly Ext.A22 order was passed permitting the plaintiff to withdraw the appeal. The documents produced by the plaintiff do not show that plaintiff or his predecessor - karanavans were acting as the Muthawalli in respect of the mosque. At best, they could only be described as the Sheik having control only over the religious function and they cannot have any authority over the adminsitration of the mosque and its properties. The very fact that Ext.B22 mass petition by 40 members of the Mahal was preferred against the Amin who had given one goat head to one Karallalpura Sayed Koya deviating from the settled custom will suggest the participation of the public in the affairs of the mosque and they even questioned the authority of the Amin to depart from the settled custom. Ext.B3 is the order of the Amin on Ext. B22 mass petition. Pages 25 and 26 of "Traditional Futures, Law and custom in India's Lakshdweep Islands" by V. Vijayakumar also show that the Ujjra and Mohiyuddin Mosques are public mosques in Kavarati and Amindivi islands and makes mention of the rift between Koyas and Melacheries in holding of the Ratheeb ceremonies in those islands. Ext.B4 minutes dated 2-11-1988 of the meeting of the 4th defendant Committee would show that 607 persons participated in the meeting and suggests that the Khattam and Daff Ratheebs were conducted by members of the public. Ext.B5 true extract of Land Register of Androth Island shows that the Managers of Mohiyudheen Palli are the Amin and Karanavans. Exts. A1 and B5 Land Registers were prepared under the Laccadive, Minicoy and Amindivi islands Survey and Boundaries Regulation 4 of 1959. Hence, Ext.A1 Land Register is not final. Ext.B6 is the notification dated 25-08-1967 issued by the Lakshadweep Wakf Board. Serial Nos. 1 and 185 in Ext.B6 will show that the Muthawalli in respect of the two respective mosques in Kalpeni and Androth islands are "committies". As against Serial No. 147 which pertains to the plaint schedule Mohiyudheen Palli it is not the plaintiff who is shown as the Muthawalli in column 2 . What is stated in Column 2 is "under the supervision of Amin and Karanavans". The plaintiff examined as P.W.1 was pretending ignorance of the above entries. Ext.B10 note book shows that plaintiff had paid on 19-5-1976, 8-6- 1976 and 16-6-1976 various amounts being the hire charges for plates and utensils after the Khattam of the year 1976. Similarly, Ext.B11 note book shows the payment of hire charges by the plaintiff on 1-1-1978 and 23-7-1979 for the copper vessels after the Khattam of the year 1977. Ext.B12 is the note book showing the accounts of the 4th defendant Committee for the expenses incurred for the Khattam feast held on 1-12-1987 temporarily in the Chemmancherry Puthiyapalli, Androth under the leadership of Aaliyathara Saidu Muhammed consequent on the inability of the plaintiff to conduct the Khattam in the plaint schedule mosque. Ext.B12 has been signed also by the Amin of Androth. The fourth defendant examined as DW1 has deposed that Ext.B10 and B11 note books were kept by the Thimani (Peon) who had made the same available to him and it was the Thimani who was lending the vessels on hire . Exts. B13 to B20 are the receipts issued by the 4th defendant Committee to persons who supplied mutton and beef for the Khattam feast. DW1 has further deposed that Khattam is conducted in memory of Mohiyudeen Sheik Thangal and the post of Khateeb is there only in Jama Mosque where the Friday prayers and Id prayers are performed, that Muthawalli is the manager who has temporal powers whereas the religious performances like Ratheeb etc. can be done only by the Sheik. The evidence of P.W.1 at page 46 would go to show that the fourth defendant who is the President of the Committee is a member of the Puthiyapura Puthiyaveedu Branch of Puthiyapura tarwad of the plaintiff. P.W.1 has also admitted that he is the Muthawalli of the Koya Palli (which is Sl. No. 134 of Ext.B6 Wakf Register and that there is no Sheik in that mosque since no Ratheeb ceremoney is performed there. P.W.1 who claimed to have conducted the Ratheeb and Id ceremonies in the mosque as the Sheik of the plaint schedule mosque confessed that he has described himself as the second Sheik in Ext.A34 during the absence of the first Sheik who was in Ceylon. His statement that he came to know of the publication of the plaint schedule mosque as a Wakf in the year 1968 only when his counsel was informed in the year 1989 by the counsel for the Lakshadweep Wakf Board can only taken with a pinch of salt. His version that he was not aware of Ext.B6 notification and that was why he did not register the plaint schedule Wakf also cannot be believed for a moment. The account book maintained in the mosque is claimed by P.W.1 to have been stolen. Komalam Muthukoya who was the last Amin who died on 25-11-1985 as evidenced by Ext.A23 death certificate, was admittedly a family member of P.A. Nallakoya Thangal who is the father-in-law of the plaintiff. A Muthawalli does not perform any religious ceremony. A hereditary Muthawalli is unknown to Muslim law as can be seen from the "Law of Wakfs" by S.A. Kader and Mulla on Mahommedan Law. There is no legal impediment in a committee acting as the Muthawalli of a Muslim mosque. The decision in Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jamayath Palli Dharas Committee - AIR 2004 SC 4365 will show that the suit in that case was filed by a committee functioning as the Muthawalli and the suit was dismissed only for want of proof of title and not on the ground of locus standi. Ext.A1 Land Register of the year 1962, no doubt contained an entry showing the plaintiff's ancestor Puthiyapura Sayed Sheik Koya as the manager of the plaint schedule Mohiyudeen Palli. But the same was corrected by substituting the words "Amin and Karanavans" in the place of Puthiyapura Sayed Sheik Koya as evidenced by Ext.A3. Eventhough the plaintiffs application for correcting the alleged interpolation was allowed by the S.D.O. as per Ext.A36 order dated 9-6-2003, the matter is pending in appeal filed by the 4th defendant before the Administrator. The concurrent finding by the trial Court and the first appellant Court to the effect that there is no evidence to show that the mosque was constructed by the plaintiff's tarwad does not call for any interference in this appeal. Pending this appeal the plaintiff died on 21-7-2003 . Thereupon I.A. 1750 of 2003 was filed by Puthiyapura Syed Muhammed Jalaludheen Thangal to substitute his name in the cause title in the place of the plaintiff. He was the senior most member of the tavazhi of which the plaintiff was a member. The said application was allowed on 11-08-2005. It was by resort to the definition of "Muthawalli" in Section 3 (1) of the Wakf Act which takes in "any person for the time being managing or administring any Wakf property", that the trial court held that the plaintiff was the de facto Muthawalli even without a plea. The learned single judge in appeal has rectified the infirmities in the judgment of the trial Court by holding that the plaintiff was neither the Muthawalli nor the Sheik of the plaint schedule mosque and has even found that the plaintiff was a trespasser and that it was the fourth defendant committee which was managing the mosque in question. The said finding also does not warrant any interference by this Court in Appeal. This appeal which, is devoid of any merit, may therefore, be dismissed.
15. We are afraid that we find ourselves unable to agree with the above submission in its entirety made on behalf of the 4th defendant/ committee. Before delving deep into the merits of the case it may be necessary to have some idea about the geographical location, the custom and manners and the religious habits and the law of inheritance of the people of the Lakshdweep Islands in general and Androth Island in particular.
A. LAKSHADWEEP ISLANDS
(i) Location and Georgraphy
16. The Lakshadweep Islands are located on the south- western frontiers of India between 8o and 12o North latitude and 71o and 74o East longitude. These islands, which together comprise the smallest Union Territory of India , lie about 220 to 440 kms away from the coastal city of Kochi in Kerala in the emerald Arabian Sea. This archipelago consists of 36 islands, 12 atolls, 3 reefs and 5 submerged banks and covers an area of 32 square kilometres. Of these islands only ten are inhabited. The inhabited islands are :-
- Kalpeni Kavaratti,
- Kiltan, and
The following notional map shows the relative positions of the major islands of Lakshadweep vis-a-vis the Indian mainland:-
The first settlement of the island is attributed to Cheraman Perumal, the last Chera King of Kerala. It is said that the first settlers of the islands were Hindus and Budhists. The advent of Islam goes back to the 7th century A.D. around the year 41 Hijra . It is universally believed that Saint Ubaidulla propagated Islam in all the islands. In 1787, Tippu Sultan took over the administration of five islands and the rest continued to be governed by the Arakkal Family of Cannanore (presently Kannur) in Malabar. The islands were annexed to the British East India Company from Mangalore after the battle of Sreerangapattanam in 1799. In 1854 all the remaining islands were handed over to the East India Company by the Raja of Chirakkal. Thus the islands came under the British Rule. The Union Territory of Lakshadweep was formed in the year 1956. Kavarathi is the administrative capital and the headquarter of the Union Territory of Lakshadweep since 1964. Till first November 1974 these islands were called the Laccadives, Amindivi and Minicoy islands. All the islands now constitute one district with 4 Tehsils. Each Taluk has a democratic set up in the form of Dweep Panchayath. At the Union Territory level there is a District Panchayath. The Administrator heads this Union Territory. (Vide "A Short Account of the Laccadive Islands and Minicoy by R.H.Ellis and the official Website of Lakshadweep).
ii) The People
17. The inhabitants are classified as scheduled tribes. They are 100 percent Muslims. More than 93 percent of the total population is indigenous. Though they are Muslims, they follow some sort of caste system. According to the Scheduled Caste and Scheduled Tribe Lists (Modification Order, 1956) 'the inhabitants of Lakshadweep, who or both of whose parents were born in those islands are treated as Scheduled Tribes. There is no specific name for this tribe. No caste has been scheduled in relation to Lakshadweep. As members of a scheduled tribe, the islanders are eligible for benefits of positive and protective discrimination which includes 'reservation' for government jobs, educational, courses, and for scholarships. All native islanders are entitled to get free higher and professional education. The Kavarathi Thangals are considered as owners and patrons of all the Mohiuddin and Ujjra mosques throughout Lakshadweep. Their representatives on each island are called Khalifas. Each Khalifa is the head of the Sufi order on his island.
18. According to the 2011 census the total population of Lakshadweep Islands was 64,429. The language spoken in all the inhabited islands except Minicoy is Malayalam. In Minicoy, the spoken language is Mahl.
(See the official Website of Lakshadweep; Gazetteer of India (Union Territory of Lakshadweep ) edited by N.S. Mannadiar and Traditional Futures (Law and Custom in India's Lakshadweep Islands) by V. Vijayakumar )
(iii) Administration of justice
19. After the defeat of Tippu Sultan the northern islands came under the control of the British in the year 1792. Those islands were attached to the South Kanara District. Karyakkars functioning under the Zamorin were removed and a Monegar was appointed. Monegar was stationed at Amini and was assisted by a Karani with peons in other islands of the group. The powers of the Monegar steadily increased in criminal matters but disputes of a civil nature were left for the decision of Karanavars or the Kazi. The remaining islands (Kadamat, Kiltan, and Chetlat) continued to be administered from Amini. In the year 1867 the Monegar was first confirmed with powers of a Village Magistrate and Village Munsiff. In the year 1871 he was invested with the powers of a third class Magistrate. For certain types of cases he was required to associate three Karanavars as assessors. In due course the Monegar became a Deputy Tahsildar . In 1875 in the remaining islands also the system of karyakars was abolished and Amins and Gumasthans (accountants) from the mainland were appointed. In 1877 the mainlanders were removed and Amins were appointed from among the islanders. While the earlier system was hereditary, by the year 1920 it was discontinued. The Amins were appointed by selections from amongst the Karanavars. Eventually, the gumasthans also were appointed from amongst islanders. The Amin had jurisdiction in petty civil and criminal cases with appeals to the Collector and the High Court of Kerala by the Laccadive Islands and Minicoy Regulation 1 of 1912, the powers and functions of the Amin were codified. The Amin was to sit with four or more Karanavers as assessors in criminal cases and with two or more assessors in civil cases.
20. A provision was made for an appeal against the decision of the Amin before the inspecting officer or the collector. The collector was also vested with the power to transfer any appeal to the Divisional Officer for disposal. The Regulation provided for some technicalities and difference between the Inspecting Officer and the Divisional Officer in the case of appeals. Appeals could be filed before the Collector, particularly those against decisions in cases where original jurisdiction had been exercised. In the case of the Inspecting Officer exercising original jurisdiction, ordinarily no appeal could be made. But this rule was not absolute. If sufficient grounds were shown, the collector had the discretion to entertain an appeal against the original jurisdiction exercised by the inspecting officer. In the case of decisions by collectors' assistants exercising original civil jurisdiction, the right of appeal to the Collector, was an absolute vested right. (Vide Traditional Futures (supra).
(iv) The present judicial set up
21. With the promulgation of fresh Regulations in the year 1965, the old judicial set up was abolished with effect from 1-11- 1967. The Code of Civil Procedure, 1908 and other statutes were brought into force in the Lakshadweep Islands. The Karanavans who constituted the last vestige of the former jury system were discontinued from the practice of functioning as assessors assisting the Amins. There is now a Munsiff Court at Androth having jurisdiction over the islands of Kavaratti , Androth, Minicoy and Kalpeni. Another Munsiffs Court is in Amin with jurisdiction over the Amini, Agatti, Kadmat , Kiltan , Chetlat and Bitra Islands. These courts also function as the Courts of judicial Magistrates of the First Class. The Judicial Magistrate of Androth is in charge of the Chief Judicial Magistrate. The Subordinate Judges' Court at Kavaratti was upgraded as the District & Sessions Court with effect from April 1997. (See Lakshadweep Gazatteer (supra); Traditional Futures (supra) and the official Website of Lakshadweep).
(v) The official historiography
22. In the Gazetteer of India pertaining to the Union Territory of Lakshadweep edited by N.S. Mannadiar and published in the year 1977 by the Administration of the Union Territory of Lakshadweep after referring to a copious bibliography which includes "A Short Account of the Laccadive Islands and Minicoy" by R.H. Ellis, Malabar Mannual by William Logan etc., we find the following useful information:-
a) Conversion to Islam
Perhaps the most significant event in the early history of the territory was the complete religious transformation brought over by the conversion of the entire population to Islamic faith. There is no specific proof regarding the actual period of conversion. The popular tradition current in all the islands is that it was brought about by an Arab Saint named Ubaidullah, who reached Amini in Hejira 41 (A.D.663). According to this tradition, Ubaidullah the grandson of Siddique-ul-Akbar had a dream while praying at a mosque in Medina to proceed to Jiddah and from there by ocean to distant lands to spread the message of Islam. Accordingly he proceeded from Jiddah, but the vessel in which he travelled collapsed due to a storm, Saint Ubaidullah, however, drifted on a plank and finally reached the small island of Amini. The Saint started preaching at this island, but met with general opposition. He, however, got a female convert from the Pondambelli family with whom he proceeded to Androth and succeeded in converting the inhabitants there. Then he went to Kavarathi and Agatti, and returned once again to Amini in A.H.44. He succeeded this time in coverting the entire population. He then proceeded to Kalpeni converting the inhabitants there, and finally returned to Androth where he spent the rest of his life.
Saint Ubaidullah is universally known in the islands as Munbe Mullaka, which is a mispronunciation of Munbe Mussaliyar Kaka meaning the first Mussaliyar. He died at Androth and his grave is enshrined there in a mosque. Androth was accordingly regarded with deep veneration. All the Juma mosques in the islands of Amini, Kalpeni, Agatti and Kavarathi are believed to have been founded by the Saint.
b) Administration under the Arakkal Principality
The islands were kept as colonies by the Arakkal Rajas with an ultimate aim of economic exploitation. There were no public services in the islands and the main involvement of the government was to maintain law and order in a place where there were only very few criminal offences. The principality appointed a Karyakkar in important islands like Agatti, Kalpeni, Androth and Minicoy on a salary of Rs.12 per month. He was directly responsible to the Ali Raja and was the executive authority in all civil and criminal matters. The Karyakkars were generally deputed from the mainland, though sometimes members of influential families of the islands were also appointed to that covetable post. The traditional system of participation of elders in Administration was retained by the Arakkal house and the Karyakkar was advised by the Karnavans in all important matters. The Karyakkar was the pivot of the whole administrative structure and he controlled the entire administration and day to day life of the people. The properties in the direct possession of the Arakkal house were managed by him. Generally fishing licences were also issued by him. But in all matters, the people could appeal to the Ali Raja and instances are not wanting where the Karyakkars were dismissed because of their cruelty or injustice towards the people.
The trade was mainly based on barter. The Karyakkar supplied the essential food stuffs to the people who gave him the island produce in return. The boats of Arakkal family shipped the essential articles to the islands and the islands products to the mainland. Salt was generally brought from Goa. The exchange rate of rice and other articles was fixed each year by the Arakkal rulers arbitrarily. The island products were purchased from people at rates far below their market rate and sold in the best market in the mainland. But instructions were always given to safeguard the interest of the poor people, when the principality stocked rice in the islands before the monsoon.
All civil and criminal suits were filed before the Karyakkar. When suits were filed directly before the Ali Raja, an enquiry report used to be obtained from the Karyakkar before taking a decision in the matter. If the decision of the Karyakkar was not acceptable to the concerned parties, they could file an appeal before the Raja. Heavy penalties were imposed for theft. Those who were found guilty of stealing coconuts, were liable to pay penalty at the rate of ten rupees per coconut. For the depredation of coconut seedlings by cows, generally the cows were sold in auction and the damages were allowed to the plaintiff. The balance amount was divided and shared by the owner of the cow and Arakkal principality. If a person removed a coconut seedling deliberately from another man's property, he would be required to pay a fine of 51 varahan ( a silver coin) to the Arakkal house. The quasi-religious disputes were settled by the Khazi, with the assistance of the Karyakkar. The verdicts of the Khazi, in religious matters were always given due respect by the rulers.
c) Property and inheritance
Property in the islands is either ancestral or self acquired. Ancestral property is known as Velliazhcha (literally Friday property) pronounced as Belliazhcha in the Amindivis. Self acquired property is known as Thinkalazhcha (literally Monday property) on the Laccadives and Belasha on the Amindivis.
Ancestral or Tarwad property is governed by the Marumakkathayam law of inheritance prevalent on the Kerala coast. However, there is no codified law and the practices are governed by customs which differ from island to island. Broadly speaking, property right descends through the female line, the male members having only right for sustenance during their lifetime. The property is enjoyed by the joint family, consisting of brothers, sisters and sister's children. The children are not entitled for any share in the joint family property of their father.
The property is managed by the eldest male member known as Karanavan. He is responsible for the upkeep of the trees in the land and for effecting improvements to the Tarwad properties. He can mortgage the Tarwad property for debts incurred and can also repay debts from the income therefrom. He has, however, no right to alienate or sell any portion of the joint family property.
The Tarwad properties can be partitioned only with the consent of all members of the Tarwad. However, there are local variations in the criteria for partition. In Kavarathi and Agatti, for example, all the members of the joint family are eligible for one share. In Androth and Kalpeni on the other hand division of properties is between branches or tavazhis of the family. A tavazhi does not possess the right to mortgage or sell the Tarwad property so divided and has only the right to enjoy the income from property during the lifetime of the members of the tavazhi.
Self-acquired or personal property is governed by Muhammadan Law of succession. Here also there are variations in different islands. In Androth, succession to personal property is also governed by Marumakkathayam Law unless it is specifically laid down in the will of the deceased that it should go to his wife and children. Self-acquired property can, however, be disposed of in any manner one likes. Under the Muslim Law followed in the islands, the son is eligible for two shares in the property, while the daughter gets only one share.
d) Religious beliefs and practices
Islam enjoins 5 duties upon its followers- the recitation of the Kalma ( an expression of faith in God and in (Muhammad), offering of namaz(prayers) 5 times a day, roza (fasting in the month of Ramzan), Zakat (contribution in cash or kind for charitable purposes) and Haj to Mecca. The people of the islands are very strict in all their religious observances. The daily prayers are said at day break, soon after mid-day, before sunset, after sunset and early in the night.
The Ramzan fast which lasts for thirty days begins on the first of Ramzan, the ninth month of Hijjra. The fasting requires total abstinence from food and drink from sunrise to sunset. On the 27th day, which is regarded as mot sacred, the Muslims give Zakat to the poor to the tune of 2 = % of their income. The Haj-Pilgrimage to Mecca is performed on the 9th day of Dulhaj (12th month of Hijjra era). The Haj is not compulsory for those who cannot afford to undertake the long and expensive trip. Those who have performed the Haj are reverentially called Hajiar.
Muslims of the territory also follow certain ritualistic practices which do not have the sanction of islam. Such a religious ritual common to all islands, except Minicoy, is the Rathib. The Rathib is performed twice a week in the name of the two shieks popularly known as Rifai Shiek and Moheiddin Shiek, at the Ujira Mosque and Moheiddin Mosque respectively. Special Rathibs are conducted on special days and also by individuals. There is very little difference in the ritualistic practices followed in the two Rathibs, except in the rendering of the baith or hymns sung in praise of the respective saints during the performances.
The performance of the Rathib is initiated by the Khalifa of the mosque who renders the baith. The participants sit in two rows facing each other, each holding a kind of tambourine known as duff. They beat the duff to the tune of the baith, and perform a series of exercises. At the same time, about half a dozen of them dance up and down between the rows carrying a sharp instrument known as labbus and get into fits of frenzy as the pace of the baith, as well as the beating gain momentum. At the climax they leap into the air shouting and apply the labbus in their bodies. Rathib is also performed without the accompaniment of the duff and the ritual of inflicting pain with labbus is performed only on special occasions.
The mosques in the islands are structures built with the main entrance on the eastern side. In almost all islands, there are three main mosques, the Juma, the Mohiddin and the Ujira. The Juma mosque is generally the largest where the Id congregration meets. The Mohiddin and Ujira mosques are mainly intended for the performance of Rathib. Apart from these, there are numerous mosques, big and small in size. In some islands like Kavaratti, Agatti, Amini and Kiltan there are separate Niskarapuras (prayer houses) for women, where the person leading the prayer is a woman. A mosque is in charge of a Mukri or Mullah, whose main function is to make the call for prayer five time a day and lead the Niskaram. The Mukri's remuneration consists of the yield of the coconut trees set apart for the purpose by the community and the offerings or Nerchas by the devotees. The Khasi leads the Friday prayers. In Minicoy, the office is known as Kathib. The office of the Khasi is hereditary in all islands except in Minicoy where it is elective.
The most important festivals celebrated in the territory are Id-Ul-Fitr, Id-Uz-Zuha (or Bakrid), Milad-Un-Nabi, Shab-e-Barat and Muharram.
Id-Ul-Fitr, locally known as Cheriya Perunal marks the culmination of the Ramzan fast. It falls on the first of the month of Shawwal when thanks giving prayers are offered in important mosques for the successful completion of the fasts of the previous month of Ramzan. It is a day of feasting. In some islands community feasting is also prevalent. In Kavaratti, for example, a big feast is arranged at the Mohiddin Mosque with contributions made by the people in the form of offerings of goats, cows, rice etc. Moulood (prayer) in the name of Prophet is conducted at the mosque on the day. Special Rathibs are conducted at the Ujira and Mohiddin Mosques. Women and children adorned in their best clothes attend the Rathibs. In some islands (Kadmat for example) women participate in the performance of the Rathib. In Minicoy, a community feast is arranged in each village, expenditure being met from the village funds.
Id-Uz-Zuha or Valiya Perunal (Bakrid) falls on the 10th day of Dul Haj to commemorate the occasion when the Prophet Ibrahim submitted himself to the will of God. Men attend the morning prayers in mosques and cows and goats are sacrificed in God's name and distributed. Special Rathibs are performed to mark the Valiya Perunal.
Milad-Un-Nabi, the birth day of the Prophet Muhammed falls on the twelfth day of Rabi-Ul- Awwal. Alms are distributed on this day and people gather at the mosques to listen to discourses on the Prophet's life.
Shab-e-Barat is celebrated on the night of the fourteenth day of Shaban when special prayers are offered for the peace of the souls of one's deceased kin and sweets are then distributed.
Muharram is an occasion for mourning rather than an occasion for festivity, as the first ten days of the month of that name commemorate the tragedy of Karbala which witnessed the martyrdom of Imam Hussain, (the grandson of Prophet Muhammad) and his companions. On the tenth day evening sweets are distributed in the mosques.
While the above festivals are common to Muslims all over the world, certain other festivals in the name of Muslim Saints are also celebrated in the territory. The death of the Rifai Sheik and the Mohiddin Sheik are celebrated in all islands except Minicoy with great veneration. Special prayers are conducted. The death of Ubaidullah, the Muslim Saint who is said to have converted the inhabitants to Islam, is celebrated with special mouloods at the Ujira Mosque at Androth. Similarly the death of Shaik Mohammed Khassem Oliyulla whose remains are in the Ujira Mosque in Kavaratti island is also celebrated with special prayers.
B. ANDROTH ISLAND
(i) ITS GEOGRAPHY
23. This Island is located between 100 49' North latitude and 73 0 41' East longitude as well as 293 kms. away from Kochi. It is the nearest island to the mainland and has an east-west orientation unlike other islands lying in the north-south direction. It is the largest island in Lakshadweep with thick vegetation mainly coconut groves which add to the beauty of the island. This was the first island to embrace Islam. (Vide the official website of Lakshadweep). A notional map of the Androth Island is given below:-
(ii) William Logan's Account
23. William Logan, who lived during the period from 1841 to 1914 was a Scottish civil servant who had his long stint in the Madras Civil Service from August 1862 to November 1888. Logan was in the erstwhile Malabar District between 1864 and 1888 and served there in various capacities like Sub Collector, Joint Magistrate, Acting District and Sessions Judge of North Malabar at Tellicherry and later of South Malabar at Calicut, Collector and District Magistrate of Malabar etc. It was this administrator turned historiographer who is the proud author of the famous "William Logan's Malabar Manual". Logan has in the 2nd volume of the above manual incorporated a detailed description of the Lakshadweep Islands (formerly Laccadive islands) given by the historian V.Chappu Menon. The following is the description given with regard to the Androth Island, so far as it is relevant to the present context:-
"Position and Extent:- This island, which is the largest of the northern group of the Cannannore Islands is situated in Lat.10o 48' N and Long.73o 57' E. It is about 139 miles from Calicut and differs in its formation from all the other islands of the group in that it lies east and west and has hardly any lagoon. The coral shoal upon which it is situated is of considerable extent, but the coral crops up to the surface only in the immediate neighbourhood of the land, the reef being hardly anywhere above sixty yards from the beach and on the east the beach and reef are coincident. The greatest length of the island from south- east to north-west is about 3 = miles, and the greatest breadth, which is at about the centre of the island, is 1 < miles. The area is 1,067 2/3 acres or about 1 2/3 square miles. The coast line is scarcely at all indented, so that the island forms a regular oval figure. The surface is generally a level plain, elevated but a few feet above the sea, but here and there it is varied by mounds formed mostly of the heaped-up material excavated in forming the "Tottam" or arable land. The highest mound is probably not 40 feet above the sea and the average elevation not more than 7 or 8 feet.
People, their Customs and Occupation- The people of the island fall under three main classes viz-
(1) Karnavar (doers, agents) subdivided into Karnavar proper and Thanakapiratha Kudiyans.
(2) Malumis (pilots and sailors), subdivided into (a) Malumis proper (b) Urukars.
(3) Melacheris (tree climbers).
The first class of Karnavars is composed of the rich odam(vessel) owners and Panchayatkars (arbitrators). The male members of this class are also distinguished by the title of Koya- a religious dignity. The island Karnavans, Amin and Kazi, all belong to this class. The Thanakapirantha Kudiyans are less wealthy and cultivators. The second class or the Malumis are as the name implies, sailors. They are generally Patta Kudiyans, i.e.partly independent and partly dependant on the higher classes. The only difference between the Malumis proper and the Urukars appears to be in the names. The third class, Melacheris are servants and toddy-drawers (the name signifies one who works aloft).
These are generally Adima Kudiyans or serfs of the Karnavars, but they are at liberty to change their employers. Inter-marriage between the two classes of Karnavars is free and unrestrained, and lately it appears that the jusconnubium(right of intermarriage with Karnavars) has been accorded to the second class), but it is still withheld from the third class or Melacheris, intermarriage with whom is punished by the exclusion of the offender from his or her caste. The marriage is, however, deemed a valid one.
The islanders compare favourably in physique with the people of the coast and in their customs and habits closely resemble the Mappillas of North Malabar. The men of the upper classes wear jackets and head gear, but the Melacheris or lowest classes wear neither the one nor the other. Contrary to what is the usage on the mainland, the women do not cover their heads and are not kept in seclusion. The women are generally very untidy and dirty.
The people are, as a rule, quiet in their disposition, but the complexities of the Muhammadan rules of inheritance and marriage and the existence, side by side, of the Makkatayam and Marumakkathayam rules give rise to frequent litigation. The men are comparatively indolent, but the women are engaged from morning till dark in cooking, pounding rice, beating, unravelling and twisting coir-fibre, carrying loads, boiling toddy in order to make jaggery etc.
It is somewhat difficult to define what is the occupation of the Karnavar class, as they rarely do anything save bullying their dependents or quarreling among themselves; occasionally they do a little cultivation and fishing and those who have odams (vessels) superintend the repairs and accompany the odam on the voyage to the coast where they do all the buying and selling, only rendering an account upon the return of the odam to the island.
The dependents of the Karanavar caste serve for nothing in their master's odam (boat), or, when he has none, in the odam in which he sails or sends his goods. The Kudiyan must also ship the produce of his trees etc., in the master's odam, or through him in the odam in which the master ships his own goods, and 20 per cent of the goods he so exports is appropriated by the master as freight. The tottam or arable land is sometimes cultivated by the master, but most is given over to Kudiyans (dependants) on the share-and -share-alike system.
The income of the Karnavar class, who are all landholders and may of them odam-owners is thus derived from the following sources:-
(1) From the produce of parambas retained in their own hands.
(2) From the export and sale of the goods worked up by the females of the family.
(3) From the freight paid them by their Kudiyans on the goods they export. Where the Karnavan is also the odam-owner he gets the whole 20 percent; when he is not , he usually gets freight for his own goods and those of his Kudiyans at the rate of 10 per cent in the odam of another and the other 10 per cent of the expots of his Kudiyans is alone appropriated by him.
(4) From the rent (half the produce) of their arable lands.
(5) Kudiyans are also bound to give the Karnavan a share of the fish they catch when fishing in his boat and to make presents on the occasion of weddings and other festivities in the Karnavan's family.
(6) Some of this class also make tours on the mainland giving themselves out to be priests and often return to the island with large sums collected from the faithful of the places they visit.
The second class or Malumis are sailors and are engaged in exporting the produce of the island to the mainland in the Karnavar's odams; some of them also possess fishing boats and small odams of their own, in which they make voyages to the coast, and this has excited the jealousy of the Karnavar class, who look upon them as interlopers and rebels. There is thus ill-feeling between the two classes.
The Melacheris or the third class are the hardest working population of the island. they alone climb trees and so pluck the nuts and draw toddy from the trees in the possession of the higher classes. For plucking nuts a small percentage is given them as hire and the toddy which is drawn twice a day is given every other day to the Karnavan, ie. half goes to the Melacheri and half to the Karnavan. Besides their profession of toddy-drawing, they have to do odam service for their lords and they also work in the tottam and go fishing. A few coast people who have settled in the island are silversmiths and jewellers.
Religion and Mosques- All the people of the island profess Muhammadanism. There were 30 mosques in 1880, of which 28 had graveyards attached".
C) BUHARI KOYA'S CASE - A "LOCUS CLASSICUS"
24. Any study on the customary Marumakkathayam Law as administered in the Amini and other islands of the Lakshadweep will be incomplete if one were to ignore the illuminating verdict rendered by Justice Janaki Amma in Buhari Koya v. Kasim Koya Haji - ILR 1979 (1) Kerala 730 where the pristine Malabar Law including attaladakkam rights in the historical setting of those islands has been beautifully adumbrated.
D. ANALYSIS OF THE CONTENTIOUS ISSUES IN THIS CASE
25. We now proceed to analyse the evidence with a veiw to ascertain whether the findings recorded and conclusions reached by the learned single Judge are unsustainable or not .
(i) Whether a suit by a Karanavan can be deemed to be instituted on behalf of his tarwad ?
26. There was no issue, much less, any contention before the Courts below that the suit was not instituted on behalf of the Puthiyapura tarwad. Such an argument was advanced for the first time before us. In order that a decree against a Manager or a Karanavan may bind the joint family or tarwad or other members of the joint family or tarwad, it is enough that the Manager or Karanavan sues or is sued as such Manager or Karanavan ( See Leelavathi Amma v. Varghese Mathai - 1965 KLT 701). It is not even necessary, where the Manager or Karanavan is the plaintiff, that the plaint should state in distinct terms that he is acting as the Manager or the Karanavan or where he is the defendant, the plaint should state that he is being sued as the Manager or Karanavan. A Karta can represent the family effectively in a proceeding though he is not named as such. (Amrit Sagar Gupta v. Sudesh Behari Lal - AIR 1970 SC 5).
ii) Whether the plaintiff in his capacity as only the de facto Karanavan could institute the suit ?
27. This also was not an issue or subject matter of any pleadings or contention before the courts below . We had adverted to the passage from Logan's Malabar Manual taking note of the fact that some of the Karanavans were making tours to the mainland and offering their services as priests. In the plaint also such a practice has been specifically pleaded. Moreover, the question as to whether it was the plaintiff or somebody else who was entitled to represent the Puthiyapura tarwad as its Karanavan, could at best, between the plaintiff and other members of his tarwad. It is not open to a stranger like the 4th defendant to raise any such contention.
iii) Appreciation of evidence
28. Eventhough in the plaint the total extent shown for the plaint schedule mosque is 0.033 Ares which is less than a cent, the said extent is evidently a mistake . Ext.A36 order dated 9-6-2003 passed by the Assistant Settlement Officer, Androth and produced along with I.A. 684/2004 and marked in this appeal shows that the area of the Mohiyuddin Palli is 2350 sq.metres which is about 50 cents. Ext.A36 also shows that there were 43 coconut trees in the property. Ext.A1 is the certified extract of the old Land Register of Androth Island prepared in the year 1962. The said certified extract was issued on 10-11-1987. This Land Register issued in accordance with law shows that the plaintiff namely Puthiyapura Sayed Sheik Koya is the Manager of Mohiyuddin Palli situated in Sy. No. 117/11 and that altogether there were 42 coconut trees in the property at that time . Ext.A2 is an extract from the original Field Measurement Book issued by the Assistant Settlement Officer, Collectorate of Lakshadweep, Kavaratti showing the Survey plan pertaining to Field No. Survey No. 117 of Androth Island. The plaint schedule Mohiyuddin Palli is shown as located in Sub Division No. 11 of Survey No. 117. Ext.A3 is a copy of Ext.A1 Land Register extract showing that the entry reading Mohiyudheen Palli Manager in Column 3 of Ext.A1 Land Register has been scored off and in that place the words "Amin and the Karanavars" have been interpolated. There is no dispute that on the plaintiff coming to know of the above interpollation in the Land Register he preferred an appeal before the Assistant Settlement Officer, Andrott and the said officer as per Ext.A36 order dated 9-6-2003 produced in this appeal held that there was an illegal interpolation in the old Land Register and accordingly the interpolated entry was rectified and the plaintiff's name was restored. The 4th defendant claims to have filed an appeal before the Administrator against Ext.A36 order and the said appeal has not been disposed of. The argument on behalf of the 4th defendant that Ext.A1 Land Register is not final does not carry much conviction. In the first place, all the columns and the entries in Ext.A1 are written in blue ink. After the heading Land Register, Andrott Island , 1962 which is also in blue ink, it is written by hand in red ink within brackets "not final". It is not known whether the above addition was there while the certified extract was issued . Even assuming that those words are there in the original register and have been faithfully carried over to the certified extract, the fact remains that the old Land Register which is admittedly maintained in accordance with the provisions of the statutory Regulation, has not been revised since the year 1962. The fact that after the disputes arose there was an attempt to substitute the name of the plaintiff described in the original Land Register as the Manager of the plaint schedule Mohiyudeen Palli with the words "Amin and Karanavans" as revealed by Ext.A3 and the same on detection and protest by the plaintiff, was corrected and the original entries were restored as per Ext.A36 order dated 9-6-2003, also cannot be easily brushed aside. It is not disputed that the plaintiff's name had been entered in the said Land Register as the Manager of the plaint schedule mosque and there is absolutely no explanation as to why such an entry was originally made in a public document like the Land Register at an undisputed point of time. If the plaint schedule mosque was constructed by the people of the Mahal and the plaintiff or his predecessors had nothing to do with the mosque as is contended by the 4th defendant, there is absolutely no explanation for the above entry in the original Land Register. It is in this context that Exts. A4 to A12 electricity bills in the name of the plaintiff evidencing payment of electricity charges by the plaintiff in respect of the energy consumed in the mosque, assumes relevance. Ext.A13 proceedings dated 5-4-1976 by the Registrar or Co-operatives issuing special permits to the plaintiff for 100 kgms. of rice and 25 kgms. of sugar for the Khattam ceremony in the plaint schedule mosque, was definitely in recognition of the status of the plaintiff as the Sheik of the Mosque in question. There is no dispute that the expression Sheik is purely a word of island origin and the said word is understood as the person performing the religious ceremonies in the mosque. A32 series of photographs proved by P.W.2 provide eloquent testimony for the fact that the plaintiff has been conducting himself as the Sheik in connection with the Ratheeb performed in the plaint schedule mosuqe. Exts. A14 and A16 are special permits dated 22-8- 1989 and 21-11-1988 respectively issued to the plaintiff for lifting bulk quantities of rice etc. in connection with the Khattam ceremony. Ext.A16 receipt dated 25-11-1987 is issued by the Mukri for having received money from the plaintiff who is described therein as managing the mosque. This document is also in perfect accord with Ext.A1 Land Register entry. Ext.A17 is a certificate dated 5-12-1988 issued by the Wakf Board Lakshdweep to the effect that the plaint schedule mosque has not been registered with the Wakf Board as on that date. This will strengthen the plaintiff's case that the bar of suit under sub section (5) of Sec. 6 of the Wakf Act, 1995 and under Section 55-E of the Wakf Act, 1954, is not attracted. Ext.A18 is an important document which throws considerable light on the contention of the plaintiff. The then Sheik of the plaint schedule mosque and belonging to the Puthiyapura tarwad of the plaintiff instituted a suit as Case No. 90/1922 before the Amin's Court, Andrott against the Mukri of the Mosque and another person. Ext.A18 is the plaint as well as the decree passed in that case. The plaintiff /petitioner therein is described as the Sheik of the Mohiyudheen Mosque. His complaint was that the Mukri had unauthorisedly leased out 57 coconut trees belonging to the mosque to one Mutharammel Pookkukoya, the second defendant therein. In that litigation the Amin and the Karanavans who were exercising the powers of a civil Court made a local inspection of the property and prepared a plan demarcating the area occupied by the mosque from the neighbouring properties on the south, west and south west of the property of the mosque. The first defendant Mukri namely Mutharammel Abdu Rahiman Koya finally swore before the Amin and the Karanavans that the property demarcated in the plan belongs to the mosque. The relevance of this document lies in the fact that unless the Sheik who instituted the suit was the manager of the mosque, he could not have lodged the complaint before the Amin and the Karanavans. If the Amin and the Karanavans were the Muthawallis in respect of the mosque as is contended by the Mohiyuddin Palli Committee represented by the 4th defendant, the Muthawallis themselves could have taken action and they would not have allowed the then Karanavan of the plaintiff's tarwad to style himself as the Sheik of the Mosque and to lodge a complaint on behalf of the mosque. It is pertinent to bear in mind that the above dispute dates back to the year 1922. Ext.A19 petition dated 24-10-1987 by the plaintiff as the Sheik of the mosque seeking police aid from the S.D.O. for the proposed Khatam ceremony and Ext. B8 order dated 2-11-1988 declining to grant police aid and Ext.A20 Judgment dated 25-11-1987 by the High Court in O.P. 9410/1987 filed by the plaintiff directing the S.D.O. to decide whether the plaintiff was conducting the festival for the previous three years and, if so, to grant police aid etc. do not clinch the issue either way. This is because even before the subject matter of the said dispute became final, the plaintiff approached the civil Court with the present suit. Ext.A35 is an application dated 7-11-1967 by the Muthawalli of Velleripalli (Sl.No. 156 of Ext. B6 notification) in Andrott Island seeking permission of the Amin Andrott to take the necessary electric connection to the said Mosque. This document will show that even in respect of a Mosque of which the Amin was not shown as the Muthawalli, but instead, one P. Padippura Syed Koya was shown as the Muthawalli even according to Ext.B6 notification, had to apply to the Amin for permission for electrification. Exts. A23 death certificate and A24 proceedings of the Collector show that Komalam Muthukoya who was the Amin of Androth and who retired as such on 31-7-1983 died on 25-11-1985. It was after the death of the said Amin that there was an attempt by the Mohiyudheen Palli Committee headed by the 4th defendant to slowly grab at the control over the management of the plaint schedule mosque. Ext.B1 is a reply to Ext.A25 notice issued by the plaintiff under Sec. 80 C.P.C. and Sections 55 and 56 of the Wakf Act, 1954. Ext. B2 is the copy of the deposition of the first petitioner in Ext.B22 mass petition. As per Ext.B3 order dated 18-2-1948 the Amin disposed of Ext. B22 mass petition granting the head of three goats to one Karalalpura Syed Koya . Ext.B4 is the minutes dated 2-011-1988 of the meeting of the Mohiyudheen Palli Committee containing self serving statements. Admittedly, the number of signatories to this meeting is only 610 which is only a microscopic minority of the total population of Androth Island . Ext.B4 minutes was rightly discarded by the trial Judge. Ext.B5 is the certified extract of the Land Register extract pertaining to the property in Sy. No. 117/11. Ext.B5 has been issued on 22-6-1989 . In this Land Register extract the Manager of Mohiyudheen Church is shown as the Amin and the Karanavars. It is pertinent to note that this document was issued after the objectionable interpolation was effected in the original entry in the Land Register and this document does not have any relevance after Ext.A36 order of the S.D.O. deleting the interpolation and restoring the original entry. Moreover, even under Ext.B6 notification which is the sheet anchor of the contesting 4th defendant, the Muthawalli of the plaint schedule mosque is only shown as "under the supervision of the Amin and Karanavans" . Ext. B6 is the trump card of the Palli Committee (contesting 4th defendant). It is a notification dated 25-08-1968 issued by the Laccadive Wakf Board, Union Territory of Laccadives, Kavarati Island in exercise of its powers under Sec. 5 (2) of the Wakf Act, 1954. By this notification the Wakf Board was including the 214 Mosques referred to therein in the list of Wakfs under Sec. 5 (2) of the Wakf Act. Sl.Nos. 1 to 22 are the Mosques in Kalpeni Island, Sl.Nos. 23 to 25 are the Mosques in Bitra Island, Sl.Nos. 26 to 67 are the Mosques of Amini Island, Sl. Nos. 68 to 111 are the Mosques of Kiltan Island, Sl.Nos. 112 to 130 are the Mosques of Kadmat Island, Sl. Nos. 131 to 167 are the Mosques of Androth Island , Sl.Nos. 168 to 201 are the Mosques of Agatti Island and Sl.Nos. 202 to 234 are the Mosques in Kavaratti Island. Ext.B6 notification on the first page itself gives the following heading:
"Name and Address of Wakf and beneficiaries-Muslim Community. How the Wakf is administered - By custom"
The above heading itself cuts at the root of the contention of the Palli Committee that Muthawalliship cannot be hereditary by custom. Sl.No. 147 is the entry pertaining to the plaint schedule Mohiyudheen Palli . Column 2 of Ext.B6 pertains to the name of the Muthawalli . Against Sl.No. 147, what is given under Column 2 is "under the supervision of Amin and Karanavans". It was the above entry which persuaded the learned Judge in appeal to hold that the Muthawalli of the plaint schedule mosque was the Amin and Karanavans. The very fact that Column 2 of Ext.B6 shows "under the supervision of Amin and Karanavans" itself indicates that the Muthawalli whoever he be was only under the supervision of the Amin and Karanavans . It certainly does not mean that the Amin and the Karanavans are the Muthawallis. The learned Judge was misreading the evidence to hold that as per Ext. B6 the Muthawalli was Amin & Karanavans. Sl.No. 158 in Ext.B6 is Jumathpalli in the very same Androth Island. In column 2 pertaining to the name of Muthawalli what is entered is "Members of Pattackal under the supervision of Amin and Karanavans". If the argument of the contesting respondent (D4) is to be accepted, then all Mosques having the name Mohiyudheen , Jumaath or Ujira are public Mosques which are to be administered by the Amin. The said contention falls to the ground in the case of Sl.No. 158 "Jamath Mosque" which has been held to be a Mosque of which the members of the Pattakal family were entitled to function as the Muthawalli in hereditary rights by a Division Bench of this Court in C.R.P. Nos. 460 and 462 of 2006 which shall be adverted to later. The statement of R.H. Ellis at page 66 of "A Short Account of the Laccadive Islands and Minicoy" that the Jamath, Moidin and Ujira Mosques on every island except Minicoy are public mosques does not mean that those mosques have been constructed by the public. The word "public mosque" only means that it is a mosque in which the members of the public have a right of worship. It is true that the plaintiff has not been able to establish that the plaint schedule mosque was constructed by the former Karanavans of his tarwad. But there is no evidence to show that the mosque was constructed by the members of the mahal either . As a matter of fact the committee of the 4th defendant came into existence only in the year 1988. They have absolutely no explanation as to how and why the name of Puthiyapura Sayed Sheik Koya the previous Karanavan of the plaintiff's tarwad came to be entered as the Manager of the plaint schedule Mohiyudheen Palli in the year 1962 in Ext.A1 Land Register which is admittedly a statutory one. Similarly, Sl.Nos. 24 , 25, 47, 73 , 81 , 91, 94 , 120, 123, 178, 189, 199 and 204 in Ext.B6 are all mosques having the name Mohiyudhin Palli or Jamath Palli but are not managed by Amin or Karanavans. As against the mosques at Sl. Nos. 21 and 22 in Kalpeni island the person shown as the Muthawalli is the Government. This means that in those public mosques which were under the management of the Government, the notification has taken special care to show the Government as the Muthawalli. Similarly, for the mosques at Sl. No. 1 in Kalpeni island and Sl. No. 185 in Agatti island a Committee is shown as the Muthawalli. This again shows that if the Muthawalli of the plaint schedule mosque was not a member of the Puthiyapura Tarwad of the plaintiff but was a Committee, the Wakf Board would have very well shown such committee as the Muthawalli. The learned Appellate Judge was clearly in error in holding that as per Ext. B6 notification the Amin and Karanavans were the Muthawallis in respect of the plaint schedule mosque. The Muthawallis indicated for other similarly situate mosques in Ext. B6 notification were not taken note of in this connection. Ext. B10 and B11 are self serving note books which do not in any way go against the contentions of the plaintiff. So, is the case with Exts. B12 account book and Exts. B13 to B20 receipts . At page 18 of his deposition DW1 would say that Ext.B12 account book is maintained by the Thimani (peon of the mosque). No explanation whatsoever has been offered by him as to why the said account book was not produced from proper custody. Apart from the fact that Ext.B22 mass petition does not prove or even suggest that the mosque in question belongs to the public, the allegation therein that the Amin had given the goat heads deviating from the custom is something pertaining to the religious ceremony and not pertaining to the ownership or administration of the mosque. P.W.1 the plaintiff and P.W.2 his nephew who also knows photography have both testified in terms of the plaint averment. But the case of P.W.1 that the mosque was established about 200 years ago by the Karanavan of his tarwad has no material to corroborate. He was the Karanavan and Sheik only for 17 years prior to suit and his knowledge is only through the versions passed on by his elders and that cannot constitute legal evidence. But his testimony to the effect that the former Karanavans and after their tenure he himself were officiating as the Muthawalli and Sheik of the plaint schedule mosque is corroborated by the documentary evidence already adverted to and was also accepted by the trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility. The testimony of the 4th defendant as DW1 cannot be accepted to hold that the Mosque was constructed by the local people and that the Amins and Karanavans were the Muthawallis. The above version of DW1 has no evidentiary support. It is rather contrary to the evidence on record. With regard to the construction of the Mosque there was no acceptable evidence before the Court. With regard to the claim of DW1 that the Amins and Karanavans were functioning as the Muthawalli of the Mosque, the same is opposed to the documentary evidence in the case. We are, therefore, of the view that the trial Court also was not coming to the right conclusion when it held that the plaintiff is only the de facto Muthawalli and Sheik of the Mosque and that the said office has not been enjoyed as a hereditary right by the representatives of the Puthiyapura tarwad by custom.
E. DEDICATION OF A MOSQUE AND THE SANCTITY OF PRAYERS
29. The Supreme Court in its leading judgment Syed Mohd.Salie Labbai v. Mohd. Hanifa- AIR 1976 SC 1569, after quoting authorities of Scholars and Doctors of Mohammedan law has condensed the law in the following words-
"The dedication to a mosque is governed by special rules and special equity in the light of a particular dedication has to be determined. A mosque is obviously a place where the Muslims offer their prayers. It is well known that there are certain formalities which have to be observed by the Muslims before they offer the prayers. These formalities are-
(i) Wazoo, i.e.washing of hands and feet in a manner prescribed by Shariat;
(ii) the recitation of azann and ikamat which is usually done by the Pesh Imam or the Muazzin.
(iii) there must be a person who possesses virtuous qualities and a knowledge of Quran and other religious rites who should lead and prayers.
It was further observed that :
"This is necessary in case of prayers offered in congregation. A single Muslim can also offer his prayers with or without an Imam who leads the prayers. As Islam is an extremely modern and liberal religion, there is no question of any person being denied admission in a Mosque for the purpose of offering prayers and that is why the law is so strict that the moment a person is allowed to offer his prayers in a Mosque for the purpose of offering prayers in a Mosque, the Mosque become dedicated to the public. Finally, it is not necessary for the dedication of a public Mosque that a Muthawalli or a Pesh Imam should be appointed which could be done by the members of the Muslim Community. All that is necessary is that there should be a declaration of the intention to dedicate either expressly or impliedly and a divestment of his interest in the property by the owner followed by delivery of possession. Here also the delivery of possession does not involve any ritual formality or any technical rule. For instance in the case of a Mosque, if the Mohammedans of the village, town of the area are permitted to offer their prayers either on the vacant land or in a Mosque built for the said purpose that amounts to the delivery of possession and divestment and after the prayers have been offered the dedication becomes complete."
F . MUTHAWALLI - HIS STATUS, RIGHTS AND DUTIES
30 . The word "Muthawalli" was unknown to the Laccadive Island until the Wakf Act, 1954 was brought into force there in the year 1968. The Muthawalli was known by the name Khazi. (Vide the common order dated 18-12-2007 passed by a Division Bench of this Court in C.R.P. Nos. 460 and 462 of 2006 to be adverted to in detail hereinafter). The definition of the word "Muthawalli" in Section 3 (f) of the Wakf Act, 1954 reads as follows:-
"Muthawalli" means any person appointed either verbally or under any deed or instrument by which a Wakf has been created or by a competent authority to be the Muthawalli of a Wakf and includes any person who is a Muthawalli of a Wakf by virtue of any custom or who is a naib - Muthawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a Muthawalli to perform the duties of a Muthawalli and, save as otherwhise provided in this Act, any person, Committee or Corporation for the time being managing or administering any wakf or wakf property:
Provided that no member of a Committee or Corporation shall be deemed to be a Muthawalli unless such member is an office bearer of such Committee or Corporation".
Thus, a person who is Muthawalli by virtue of a custom or any person , for the time being, managing or administering any wakf or wakf property is also a Muthawalli. The same dentition has been adopted in the Wakf Act, 1995 as well.
31. Sri. S.A. Khader who was a former Judge of the High Court of Madras in his "Law of Wakfs - An Analytical and Critical Study " (2nd Edition) states as follows:-
General. One of the fundamental differences between trust as known to English Law and Wakfs as conceived by Muslim jurists is that while under the English Law the property dedicated vests in the trustee, under Islamic jurisprudence, the property vests in God Almighty and the curator whether called Muthawalli or sajjadanashin or by any other name, is merely a manager.
Custom. The definition of Muthawalli includes " any person who is a Muthawalli of a wakf by virtue of any custom."
The appointment of a Muthawalli in such cases may be made according to custom and usage. In cases of institutions confined to any locality or to any particular school, for example, mosque or Kabirstan, by custom and usage the appointment is made by the Muslim congregation well known as the "Muslim Jamaat".
32. Mulla on Mohammedan Law (1st Edition) published by Dwivedi Publishing Company, has the following to state :-
"The office of a Muthawalli , in absence of any provision in wakfnama, is neither heritable nor transferable.
The office of Muthawalli is not heritable and at his death, and in absence of Wakif or his executor Court (now Board) is empowered to appoint his successor. The new Act has put sajjadanasheen etc. who have a larger interest in the usufruct, have been put at par with the Muthawalli, but have no right in the endowed property".
The rules for successor-in-office may be deduced through customs and usage of the sect or the locality, in absence of any directions.
The office of Muthawalli is not transferable and Muslim Law does not recognize the office to be hereditary unless there is a custom.
xx xx xx xx
The right of Muthawalli is not, equivalent to that of a mahant. A Muthawallis' right is purely a right of management of the property and is not a proprietary right. The duties of a Muthawalli are purely of a secular character. His duties are not of a religious character. He has no beneficial interest of any kind in the property which he administers while a mahant has such an interest in the property belonging to the math. A mahant's right is not only a right of management of the property but he holds a beneficial interest in it".
33. Dr. Tahir Mahmood in the Muslim Law of India (1980 Edition) has enumerated the Rules of Muslim Law regarding Muthawalli as follows:-
"1. Rules of Muslim Law:
1. Under Muslim law a wakf is ordinarily to be managed by a Muthawalli.
The Muthawalli of a wakf is its superintendent. He is different from a trustee inasmuch as the wakf property does not vest in him. The legal position of a Muthawalli, as distinct from a trustee, is well understood in India and the courts have aptly explained the same. They have asserted that:
(i) the Muthawalli does not own the wakf property;
(ii) he is only its manager and supervisor; and
(iii) his functions resemble those of a trustee but do not make him one.
2. It is the duty of a Muthawalli to administer and protect the wakf property in his charge to the best of his capabilities. He must discharge his responsibilities with diligence, honesty, caution and integrity. The wakf property belongs to God, the Muthawalli is its bailee (amin) and must act as such.
3. As a general rule the Muthawalli cannot by himself, alienate any portion of the wakf property. He can do so only:-
(i) if the wakf-deed expressly empowers him to do so, or
(ii) where alienation is necessary and he obtains for it prior permission of the court (which grants it exercising the power of the kazi in this behalf).
Some courts have held that an alienation or mortgage without court's prior permission, if it is for the benefit of the wakf or necessary for its purposes, is not void ab initio and may, therefore, be retrospectively confirmed by the court.
4. A permanent or long-term lease of wakf property stands on the same footing as alienation. it can be valid only in the aforesaid two situations ( and the court can confirm such a lease retrospectively if it is not for a legal necessity or for the benefit of the wakf or its beneficiaries). A lease in violation of these conditions will not, however, be void ab inito , it will be voidable at the option of the Muthawalli or the beneficiaries of the wakf.
As regards a temporary lease, the Muthawalli may, in his discretion, grant it for a period up to one year in the case of non-agricultural and up to three years in the case of agricultural(wakf) property; for these he needs neither the sanction of the wakf-deed nor prior approval of the court.
5. The wakif of every wakf can make provision for the remuneration of the Muthawalli in the form of a fixed allowance or otherwise. In the absence of such a provision the court can fix a remuneration for him, which cannot in any case exceed one-tenth of the wakf's income.
6. The sajjadanashi of a khanqah has larger rights than an ordinary Muthawalli. he may own, or share with the founder's descendants, the surplus income of the institution. If there is a Muthawalli (other than the sajjadanashin) the sajjadanashin has supervisory powers over him. As a Muthawalli he is bound by the general rules governing Muthawallis, but as sajjadanashin he may have a superior position and better rights. The superior rights of sajjadanashin and his position vis a vis the descendants of the founder of the khanqah and its additional personnel (khuddam etc. have been inquired into and explained in several cases.
7. The wakif of every Hanafi wakf can (if he choses), and that of every Ithna Ashari wakf must, appoint the first Muthawalli. In addition he can name persons (or classes of persons) to succeed him one after another (subject to the conditions which the wakif may chose to lay down). The wakif can also empower the Muthawalli to nominate a successor when eh (the Muthawalli) vacates office.
Where the office of the Muthawalli of a wakf falls vacant, while the wakf-deed is silent on the mode of succession, the wakif (if alive) or his executor (if any) can appoint a successor . In the absence of both the Muthawalli vacating the office can also in one particular case (i.e. when he is suffering from maraz-ul-maut) appoint his successor.
8. Where neither the wakif nor his executor is available, nor did or could the outgoing Muthawalli act, the court (representing the kazi) can appoint a successor. The courts have in this regard accepted some guidelines for themselves, and these are:
i) wakif's directions, if any, must be honoured, unless it is necessary to overlook them for the manifest benefit of the wakf, and
ii) in the presence of a qualified member of the wakif's family a stranger should not be appointed among the family members themselves the court does not have to observe any order of priority and may exercise discretion.
9. Under the law the office of Muthawalli is not hereditary , though the wakif can chose to name his lineal descendants to be the successive Muthawallis one after another. In some cases decided in 1935 and earlier the courts, while recognizing this general rule, had held that the office of Muthawalli could in a particular case become hereditary by custom and in such a case custom would prevail. These cases are, it is submitted, to be reviewed in the light of the Shariat Act enforced in 1937.
10. No Muthawalli can 'transfer' his office to another person.
11. The wakif-Muthawalli of a wakf who has named a person to be his successor after his death can, in his life-time appoint a third person as Muthawalli. Such a person can act during the rest of the wakif's life but not thereafter.
A wakif cannot, however, dismiss a Muthawalli who has already taken charge of his office, unless he has reserved such a right under the wakf-deed.
12. In the absence of a proper Muthawalli, a de facto Muthawalli can act without establishing his de jure character. A person who for the time being manages the property of a wakf will be governed by the rules determining powers, duties and limitations of Muthawallis.
13. When there are two Muthawallis and one of them dies, the survivor remains the Muthawalli unless there is a contrary direction in the wakf-deed. The survivor can also, on his death-bed, nominate his successor.
14. As a general rule, the person appointed as a Muthawalli (whoever appoints or nominates him) must be major according to the Indian statutory rules) and of sound mind.
An exception can, however, be made in the case of a person who is a minor when his turn comes to serve as Muthawalli under the terms of the wakf-deed. The cases allowing such an exception, it is submitted, need a reconsideration. No wakif, it can be expected, would have stipulated that a person indicated by him must act as Muthawalli even if he be a child.
15. There is no general inhibition against a woman acting as a Muthawalli.
\ The courts have held that where the Muthawalli has to act also as sajjadanashin, mujawar, imam or khatib, no woman can hold the office since the special duties of these functionaries cannot be performed by a woman.
16. A non-Muslim can be appointed as muawalli of a wakf, unless in a case the functions of the Muthawalli are of a religious nature.
While there is nothing in the texts of Muslim law prohibiting a person belonging to a particular school of law to act as Muthawalli for a wakf belonging to followers of another school of law, the courts have exercised their discretion in some cases of this nature keeping in view the facts of those cases.
The trend of administrative legislation in India relating to wakfs, however, seems to be in favour of maintaining the sectarian differences in the matters of management of wakfs.
17. As regards Muthawallis, the courts have settled the following miscellaneous rules:-
(i) a Muthawalli can in his personal capacity sue for a declaration that he is the Muthawalli of a particular wakf;
(ii) he can, also sue for possession of the wakf property;
(iii) in the execution of a decree against a Muthawalli in his personal capacity the property of a wakf (of which he is the Muthawalli) is not liable to sale or attachment.
(iv) vacancy of a Muthawalli which has already come to exist may be filled by the court (when competent to do so) on an appreciation in that behalf; for this purpose a suit is unnecessary.
(v) while filling the vacancy of a Muthawalli the court shall give notice to all interested persons;
(vi) a Muthawalli who wants to alienate wakf property and needs, under the rules, court's sanction for it, may obtain the same by making an application; he need not , for this purpose, institute a suit;
(vii) possession of a Muthawalli cannot be adverse to the wakf".
G. WHETHER MUTHAWALLISHIP CAN BE HERIDITARY ?
34. It has already been seen that the definition of the word "Muthawalli" itself recognises a Muthawalli who holds it by virtue of a custom. Both Justice S.A. Kader and Mulla in their authoritative commentaries have also noticed that the Muslim Law recognises a Muthawalli by custom and usage. In Ext. B6 notification dated 25-08-1968 issued by the Laccadive Wakf Board under Sec. 5 (2) of the Wakf Act, 1954 and which is heavily relied on by the 4th defendant it is specifically mentioned that the Wakfs thereunder are administered by custom. Even the 4th defendant who was taking the stand that there is no custom in the island to show that the office of Muthawalli is hereditary, confessed at page 26 of his (DW1) deposition that in respect of his own mosque it is his tarwad which is the Mutavalli. At pages 672 and 673 of "the Commentaries on Muhammedan Law '' by V.R. Verma (9th Edition ) it is observed that the office of the Muthawalli may become hereditary by custom or usage. S.A. Kader of in the "Law of Wakfs" (supra) at page 38 has specifically observed as follows:-
Hereditary right to the office of Muthawalli.
Muslim law does not recognise any right of inheritance or rule of hereditary succession to the officer of Muthawalli. There are two exceptions to this principle:
(1) Where the founder has laid down the rule of hereditary succession to the office in which case the rule has to be adhered to, and
(2) Where the office of Muthawalli becomes hereditary by custom in which case the custom should be followed.
35. A Division Bench of this Court in the common order dated 18.12.2007 in CRP Nos.460 and 462 of 2006 had occasion to consider the very same question in respect of the Jama- ath mosque in the very same Andrott Island of Lakshadweep. The Division Bench was considering the sustainability of the common judgement of the Wakf Tribunal of Lakshadweep which had disposed of two suits OS Nos. 1of 1998 & 2 of 2001 jointly. The plaintiff in OS 1 of 1998 contended that the Jama -ath Mosque at Andrott Island was the first among the Mosques established in the said Island, that the said Jama- ath mosque was originally built and dedicated by Saint Ubaidulla during the 7th century A.D, that the original Muthawalli of the said Wakf was the Wakif himself namely the said Ubaidulla, that by virtue of immemorial custom and usage, the post of Muthawalli and traditional Khazi of the Mosque was vested in and devolved on the members of the Pattackal family and the members of the said family constituted the de Jure Muthawalli and the family had the discretion to choose the most eligible and qualified among them to be the de facto Muthawalli. The above claim of the plaintiff was opposed by the defendants therein contending inter alia that the Jama- ath mosque of Andrott was constructed by the people of the Mahal and that the Mosque was managed by a committee under the supervision of the Amins and Karanavans of the Island. The defendants denied the claim of the plaintiffs therein that they were the descendants of the said Ubaidulla and that the members of the Pattackal tarwad had the right of customary Muthawalliship in respect of the Andrott Jama -ath mosque. The Wakf Tribunal in that case notwithstanding the voluminous evidence and the reports of ancient historians to suggest that members of the Pattackal family of the Plaintiffs therein were acting as the Muthawallis of the said Mosque, as per the common judgment dated 20-5-2006, came to the conclusion that the plaintiffs therein failed to establish that the Pattackal family was the traditional and customary Muthawalli of the Andrott Jama- ath Mosque. It was further held that the said Mosque was a public mosque managed and supervised by the Amins and Karanavans who were representatives of the Administration, that the Committee of the members of the Mahal set up by the contesting defendants therein was only an organization formed for the maintenance and repair of the Jama -ath Mosque and accordingly dismissed the said OS 1 of 1998. The other suit namely OS 1 / 2001 was instituted by the contesting defendant in OS 1 /1998 praying for the framing of a scheme for the proper administration of the Jama ath mosque of Andrott alleging that the said Mosque belongs to the entire members of the Mahal. As per the aforesaid common Judgement dated 20.05.2006 the Wakf Tribunal dismissed OS 1 of 1998 filed by the members of the Pattackal Tharavd and decreed OS 1 of 2001 filed by the members of the Mahal Committee. It was the said common Judgment which was assailed before this Court in CRP Nos.460 and 462 of 2006. The Division Bench of this Court after an exhaustive consideration of the oral and documentary evidence as well as the authoritative commentaries including " A SHORT ACCOUNT OF THE LACCADIVE ISLANDS AND MINICOY " by R.H.Ellis published in the year 1924 and the "Lakshadweep Gazetteer" edited by N.S.Mannadiar and published in the year 1977 set aside the common Judgment passed by the Wakf Tribunal and decreed O.S No. 1 of 1998, but dismissed O.S No. 1 of 2001. In the course of the common Order of this Court, Mr. Justice Hrun-ul-Rashid, speaking for the Division Bench observed inter alia as follows:-
"From historical books, we have noticed the fact that the Khazi of Andrott (Khazi and Muthawalli were known by the name Khazi till the Wakf Act came into force in 1968 in the Lakadives islands) during 1847 as stated in Annexure A5 and in 1920 as reported in Annexure A36 book by R.H.Ellis are from the members of the Patttakal famly. All the books referred to above also reported the fact that the name of the family founded by Saint Ubaidulla is known by the name Pattakal and that his descendants continued to hold the Khaziship............"
" All the historians noted that the tradition of the Lakkadives island dwellers ascribes the conversion to the Arab Saint Ubaidulla, his visit to the Lakkadives island, that he converted the islanders to Islamic faith, that he established the family by name Pattakkal which held the khaziship of Androth Juma-ath mosque of Androth and that the office is held in the greatest veneration........."
"There is no difference of opinion among the historians or in the Gazetteer of India notification about the conversion of people by Saint Ubaidulla,........"
"It was also recorded in the writings of Mr.Ellies, the Gazetteer and other historians that Saint Ubaidulla married a lady Hamidathbi) from Amini island and settled at Androth island. The historians also recored that the Pattackal family is the tharwad name given to the descendants of Ubaidulla and Hamidathbi at Androth. The historical books also support the case of the plaintiffs that the plaintiffs Pattakkal family are the descendants of saint Ubaidulla.
16. The only conclusion that can be arrived at is that the first Juma ath mosque in the island is the disputed mosque and it was founded by Saint Ubaidulla and that he was the first khazi/Muthawalli of the said mosque. It is a proved fact that he spent the rest of his life in Androth and his tomb is in the Juma-ath of Androth. It can be legitimately and reasonably inferred that he was the Muthawalli of the Juma-ath and that his successors continued to hold the said post. We find that such a conclusion is possible not only from the historical books referred to above but also from the Gazetteer of India of Lakshadweep islands which is an official publication. We agree with the conclusion arrived at by the court below that the Pattakkal family at Androth is the tarwad name given by Ubaidulla and Hamidathbi and that the plaintiff's Pattakkal family are the descendants of Saint Ubaidulla........."
"The Gazetteer of India and the historical evidence from the writings of the historians in the books produced would show that the mosque was founded by Saint Ubaidulla and that he was the first Muthawalli of the mosque and his descendants continued as Muthawallies. Ext.A1 document shows that one Ahmed koya of the Pattakkal family was the khazi as on 06.12.1892 and Ext A2 document proved that Kunhikoya Thangal of the same family was the Khazi as on 26.01.1933. Ext.B5 in O.S10/1974 shows that the plaintiff therein was the Muthawalli from 1959. His evidence also shows that his predecessors had been the Muthawallies for generations in continuation. The historical statement of historians also corroborate the Gazetteer of India. All material particulars would establish that Saint Ubaidulla and his descendants held the post of khazi and Muthawalli in succession.
19. It has been held by the Honourable Supreme Court in the decision reported in Srinivas Ramanuja Das Vs.Surjanarayan Das AIR 1967 SC 256 that the Gazetteer can be consulted on matters of public history.
20. In the decision rendered by the Hon'ble Supreme Court in Bala Shankar Bhattjee and others v. Charity Commissioner Gujarat State (AIR 1995 SC 1967), it was held that the Gazeteer of the Bombay Presidency Volume III published in 1879 is admissible under Section 35 read with Sec. 81 of the Evidence Act, 1872. The Gazetteer is admissible being official record evidencing public affairs and the Court may presume their contents as genuine. The statement contained therein can be taken into account to discover the historical material contained therein and the facts stated therein is evidence under Section 45 and the court may in conjunction with other evidence and circumstances take into consideration in adjudging the dispute in question though may not be treated as conclusive evidence. In the said decision Hon'ble Supreme Court also relied on, as supporting evidence, historical statements of historians and the passages in the historical books................."
"it was held that the Gazetteer of the Bombay Presidency Volume III published in 1879 is admissible under Section 35 read with Section 81 of the Evidence Act 1872. The Gazetteer is admissible being official record evidencing public affairs and the court may presume their contents as genuine......"
"all the other documents referred to in this paragraph are positive proof of the fact that there is an unbroken chain of succession of the members of the Pattakal family as Muthawalli of Andrott Juma Mosque in direct descent from the Saint Ubaidulla and no other persons nor any committee representing the public have ever acted or functioned as the Muthawalli of the Andrott Juma Mosque at any point of time......."
"The learned Counsel for the contesting respondents urged before us that there cannot be any hereditary right of Muthawalliship as recognised by Mohammedan Law. The Hon'ble Supreme Court in the decision reported in Syed Mohd.Salie Labbai and others v.Mohd, Hanifa and others-AIR 1976 SC 1569 dealt with an unfortunate saga of a perpetual strife and struggl, disputes and differences between two sections of the Muslim community of village Vijayapuram (situated in Tiruvarur District in the State of Madras) setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated Saint who was the original founder of the property. Resolving dispute about the hereditary right to act as an Imam of the mosque, the Apex Court held that the Mohammedan Law does not favour the hereditary right of being an Imam because the Imam must possess certain special qualities and certain special knowledge of the scriptures before he can be allowed to lead the prayers, that there is no clear evidence of any usage or custom by which the right to act as Imam is hereditary in this case. In a similar dispute between two families regarding the holding of the post of Muthawalli in the mosque known as Mohiyudheen Mosque of Amini Island, the scope and ambit of the Wakf Act, 1954 was considered by the Division Bench judgement in OP No.15327/1994. In the said judgment produced by the plaintiffs as Annexure A20, paragraph 32 reads as follows:
" In our view the case of the petitioner that he was entitled and succeeded to the Muthawalliship of the Mohiyudheen Mosque on the death of his uncle on 28.04.1983 is justified, acceptable and consistent with the custom proved on evidence".
It was also held in the same paragraph that :-
"The evidence on record thus suggests that Muthawalliship of Mohiyudheen mosque was being succeeded to by different Karanavans of Aranakkada Tharawad, which was perfectly consistent with the position in Mohammedan Law".
"if there was a custom of succession of Muthawalliship, then such a custom is not opposed to Mohammedan Law, but very much contemplated by it."
We have gone through the passages in Tyabjis Muslim Law, 4th Edition, B.R.Verma on islamic Law, 6th Edition and Mulla's principles of Mohammedan Law, 19th Edition. From the authoritative passages noticed on Principles of Mohammedan Law, we note that 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. It is an accepted principle of Mohammedan Law that such a custom is not opposed to such law, but the same is contemplated by it. The muthawalliship of Andrott Juma- ath mosque was being succeeded by the members of Pattakal family. It is consistent with the position in Mohammedan Law and therefore has to be recognised as a customary right. The definition of "muthawalli" in the Wakf Act also recognises the holding of the post of muthawalliship as a customary right. The definition of "muthawalli" means and includes"any person who is a muthawalli of a wakf by virtue of any custom to perform the duties of a Muthawalli". Therefore, we hold that Pattakal family is the traditional and customary muthawalli of the plaint schedule mosque........."
"The defendants in OS1/98 and the plaintiffs in the other suit contended that the suit mosque was managed by the public representatives, the Amins and Karanavans and then by an elected committee. According to them the Amins and Karanavans are managing the affairs of the mosque since the inception of that system in the island and after the end of that system in the year 1966, a 14 member committee was elected by the public where Pattakal Koyammakoya was made the president of the committee........."
"A portion of the deposition in Ext.B5 extracted in paragraph 54 was relied on by the court below to enter a finding that from 1966 onwards there was a committee till 1972 and that if at all the Pattakkal family was performing as de facto Muthawallies, that tradition and custom was breached in 1966 upto to 1974. This finding of the court below on the basis of Ext.B5 deposition leads to the ultimate finding that the plaintiffs have failed to prove that they are the traditional and customary Muthawalli of the mosque. The court below also notices the fact that all throughout i.e. right from ancient times till the date of the suit, the plaintiffs' family was holding the post of muthawalliship. The court below declined the relief sought for in the plaint for the reason that there is a break from 1966 to 1974 and that during this period a committee was managing the affairs of the mosque. The finding was recorded by extracting a portion of Exxt.B5 deposition. The learned Judge ought to have read the entire deposition to understand the meaning and context therein. Reading Ext.B5 as a whole, it is clear that the deponent had spoken about the committee which is intended for repairs and maintenance. It is not unusual in constituting such a committee for assisting the manager for the smooth functioning of the work undertaken. We have referred to the other pages in Ext.B5 deposition. The plaintiffs have a consistent case that they have been functioning as the muthawalli by tradition and custom which continued till the date of filing of the suit. They have adduced evidence-both oral and documentary -which will go to show that the Pattakkal family members are holding the post of muthawalliship as discussed in the preceding paragraphs. The court below also rightly held that though a compromise petition was recorded in OS 10/1974, that had not taken effect, no committee ever had undertaken the management of the mosque after the compromise decree in 1981 till the date of suit i.e. in 1998. The court also noticed the fact that Pattakkal family members were holding the post till the date of suit. The court below also noticed and entered findings that the defendants have failed to prove the existence of the committee managing the affairs of the mosque as muthawalli, that there is no evidence to show that the committee members had performed or acted as muthawallis even after 1981 and that the contention of the defendants that the committee elected by the public has been managiong the affairs of the mosque and that committee is the muthawalli of the mosque is unsustainable and unacceptable. We have also discussed the oral and documentary evidence on record which prove that the representatives of the public or their committee was never constituted to administer the affairs of the mosque. The court below only said that for a limited period of six years there was a committee. The said finding was based on Ext.B5 deposition which will evidently go to show that the committee referred to in the deposition is a committee constituted entirely for a different purpose viz. for the repair of the mosque. We also notice the fact that even the head of that committee is also member of Pattakkal family......"
"It is the case of the plaintiffs that the Pattakkal family members are the muthawalli of the disputed mosque and it is their representative who has to act as the muthawalli of the mosque. The entries in Ext.A3 that "pattakkal family under the supervision of Amins and Karanavans and the entry in Ext.A4 that "pattakkal; Koyammakoya is the muthawalli are not contradictory, but it is complementary. In the light of the overwhelming evidence adduced by the plaintiffs is support of their case that they are the muthawallies of the mosque right from its inception and continued till date of filing of the suit stands proved. The conclusion arrived at by the court below in paragraph 46 (after entering most of the findings in favour of the plaintiffs) that the contention of the plaintiffs that the de facto muthawalli is chosen by the members of the Pattakkal family or the Amins and the Karanavans appointed muthawalli in consultation with the family members is not proved by any evidence is without bais and therefore unsustainable. Therefore, we hold that the plaintiffs have proved their case that they are the traditional and customary muthawalli of the mosque. We also agree with the finding recorded by the court in paragraph 62 of the judgement that the defendants have failed to prove that there is an existing committee to manage the affairs of the mosque and consequently there is a vacancy of muthawalli of the mosque........"
"The defendants failed to prove that the mosque was managed by the committee of the public and that there was an existing committee to manage the affairs of the mosque and that consequently there was a vacancy of Muthawalli of the mosque. The plaintiffs proved positively the right of their family by evidence of unbreached custom. Therefore, they are entitled to a declaration that they are the Muthawallis of the mosque and that the first plaintiff who is the representative of the family is entitled to hold the office of the Muthawalli. We also hold that Andrott Jama-ath mosque is constructed and dedicated by Saint Ubaidulla, that the members of Pattakkal tharvad are descendants of the Saint and that the Pattakkal family is the customary muthawalli of Andrott Jama-ath mosque........"
"In the result, C.R.P.Nos.460 and 462 of 2006 are allowed. A decree is passed in O.S No.1 of 1998 declaring that the office of Muthawalli of the plaint schedule mosque is vested with the Pattakkal tharwad and that the first plaintiff is duly chosen to be the first Muthawalli of the mosque. The defendants in the suit are permanently restrained by the olrder of perpetual injunction from interfering with the rights of the members of the Pattakkal tharvad acting as Muthawallis of the mosque. O.S.No.1 of 2001 is dismissed. There will be no order as to costs......".
Thus, in the very same Androth Island where even William Logan had noticed the existence of as many as 30 mosques in the year 1880, the hereditary nature of the office of Muthawalli has been judicially recognized by a Division Bench of this Court after adverting to various authoritative treatises and precedents. When a custom or usage regarding a family right or inheritance is brought to the notice of the Courts and the Courts have accepted its existence by taking judicial notice of it, further proof will not be necessary to establish it in subsequent proceedings. (Vide Rama Rao v. Raja of Pittapur - AIR 1918 PC 81; Achuthan v. O.B.I. - 1960 KLT 147; Raman & Others v. Narayanan and Another - 1990 (1) KLJ 224; Lajpat Rai v. Karam Chand - AIR 1934 Lahore 830; Banarsi Das v. Sumat Prasad - AIR 1936 Allahabad - 641; Suganchand v. Mangibai - AIR 1942 Bombay 185; Jugal Kishore v. Vizhnu Hari - AIR 1955 Calcutta 419; Valliyamma v. Velu & Others - (1979 - 85) KUC 448; Audh Bihari Singh v. Gajadhar Jaipuria - AIR 1954 SC 417 and Ujagar Singh v. Mst. Jeo - AIR 1959 SC 1041. Judicial decisions recognising custom, to be relevant and admissible need not be "inter partes" (Vide Fazle Rab v. Mohd. Yakeen (2002) 2 SCC 652.
H. THE FIRST APPELLANTE COURT WAS WRONG
35. The learned Appellate Judge was , therefore, wrong in holding that it was not the plaintiff but it was the Amin and Karanavans who were the Muthawallis in respect of the plaint schedule mosque, that the Muslim Law did not recognize any hereditary Muthawalli and that the assumption of office of the Muthawalli by the plaintiff was by way of trespass. This intra - court appeal is not fettered by the rigour of Section 100 C.P.C. and there is no necessity for the appellant to make out any substantial question of law for maintaining this appeal. (Vide Venugopalan v. Malappuram District Co-operative Milk Supply Union Ltd. - 1995 (2) KLT 200 = AIR 1995 Kerala 369 F.B.). Even if any substantial question of law was necessary for maintaining this appeal, we have no hesitation to hold that the findings recorded by the learned Single Judge not being based on the evidence on record or are even contrary to the evidence on record and the reasoning of the learned Judge is based on surmises and on a misreading of the evidence on record, justifying interference even under Section 100 C.P.C. (See paragraph 9 of D.R. Rathna Murthy v. Ramappa - (2011) 1 SCC 158.
We, therefore, hold that :-
1) Both the plaintiff as well as the 4th defendant, namely the Mohiyudheen Palli Committee have failed to prove as to who constructed the mosque .
2) the plaintiff has succeeded in proving that the office of the Muthawalli and Sheik of the plaint schedule mosque has been and continues to be held by the successive Karanavans or chosen representatives of the Puthiyapura tarwad of the plaintiff. The plaintiff is, therefore, entitled to a mandatory injunction directing the 3rd defendant to amend Ext.B6 notification and consequential registers, if any, so as to show that the Muthawalli and Sheik of the plaint schedule mosque is the Karanavan or the chosen representative of the Puthiyapura tarwad of the plaintiff.
3) The plaintiff is entitled to the perpetual injunction as was granted by the trial court and subject to the restrictions imposed by that Court.
4) The plaintiff, and after his death, the succeeding Karanavan acting as the Muthawalli and Sheik of the plaint schedule mosque will be entitled to police protection, as and when any contingency arises, to ensure that there is no illegal obstruction or interference in such person acting as the Muthawalli and Sheik of the Mohiyuddin Mosque. But this will not in any way entitle the Muthawalli and Sheik of the Mosque to restrain any islander from worshiping in the mosque or from burying the dead in the cemetery attached to the mosque, as long as the formalities thereto including the remittance of the prescribed fees are adhered to.
It was conceded before us by the learned Senior Advocate appearing for the 4th defendant that the finding recorded by the courts below rejecting the defence contention that the suit was not maintainable in view of the provisions of the Wakf Act, 1954 and the Wakf Act, 1995, are unassailable. Eventhough one Kunhi Seethi Koya who claimed to be the Karanavan of the second thavazhi of Puthiyapura tarwad was impleaded in this appeal as the second appellant, we have not pronounced upon his right, if any, to act as a joint Muthawalli and Sheik. Puthiyapura Syed Muhammed Jelaludheen Thangal who was admittedly the senior most male member of the tarwad alone has been substituted in the place of the original plaintiff.
36. In the light of the foregoing discussion, the judgment and decree passed by the learned single judge in appeal are set aside and the suit will stand disposed of as follows:-
i) A declaration is granted to the plaintiff that the office of the Muthawalli and Sheik of the plaint schedule mosque known as Mohiyudheen Palli and its properties comprised in Survey No. 117/11 of Androth Island vests in the Puthiyapura tarwad of the plaintiff.
ii) A declaration is granted that the original plaintiff namely, Puthiyapura Sheik Koya Thangal had been and was on the date of institution of the suit and continued to be the Muthawalli and Sheik of the aforesaid mosque until his death pending this appeal on 27-1-2003.
iii) A decree for perpetual injunction restraining the defendants from causing any obstruction to or interfering in any manner in the plaintiff or the succeeding Karanavan or chosen representative of the Puthiyapura tarwad holding the office of the Muthawalli and Sheik of the aforesaid Mosque, is granted. This decree will not, however, entitle the plaintiff or the succeeding Muthawalli and Sheik of the said mosque to prevent Muslims irrespective of cast, creed or sect from entering the Mosque for worship or for using the cemetery attached to the Mosque for burying the dead so long as the Rules in that behalf are adhered to and the prescribed fee is paid or remitted.
iv) A decree for mandatory injunction is granted directing the 3rd defendant Lakshadweep Wakf Board to make necessary entries in the Wakf Register and other connected records regarding the Muthawalli and Sheik of the plaint schedule Mosque in terms of the declaration granted as above.
v) Defendants 1 and 2 are directed to render necessary police aid to the Muthawalli and Sheik of the plaint schedule Mosque, against any illegal obstruction or interference caused by others, in case of any contingency but subject to the right of the Muslim public mentioned above.
vi) The declaration prayed for to the effect that the plaint schedule Mosque and its properties belong to the Puthiyapura tarwad of the plaintiff, is refused.
Dated this the 10th day of April, 2012.
V. RAMKUMAR, JUDGE. ani/ K. HARILAL, JUDGE.
37. GLOSSARY OF TERMS
- 'ADALAT : Rectitude of character
- ARKAN : Eseential elements (of a juristic act)
- AMANAT : Trust
- AMIN : A Trustee; person in management of a wakf. Before theTerritory formation of the Lakshadweep,Union of were taken in thejudicial decisions Laccadives group of islands by a local official called "Amin" assisted by elders called "Karanavars" under the provisions of Minicoy Regulation 1 ofIslands the Laccadive and 1912.
- 'AUL : Doctrine of increase
- AYAT : Verses ; signs
- 'AYB : Defect
- 'AYN : Specific or determinate property
- 'AZIMAT : Strict law
- BAITH : Hymns sung in praise of saints during Rathib performances.
- BATIL : Void
- BAYAN : Irrevocable repudiation
- DAFF/DUFF : A kind of tambourine used for Rathib
- DAFF-KAR : People who perform Ratib beating tambourines
- DARU'L ISLAM : Territory of safety, a freidly state
- DAWA' : Claim DIYAT : Compensation
- FAKEER/FAKIR : A Muslim oris Hindu mendicant monk holymanwho regarded as a
- FAQIH : Lawyer
- FARD : Obligatory (act)
- FATWA : Judicial decisions
- GHASAB : Usurpation
- GHASIB Userper; trespasser
- HAJJ : Pilgrimage
- HAKIM : Lawgiver:Magistrate:Judge
- HALAL : Proper
- HAQ : Right
- HARABI : Hostile (to the law) alien
- HARAM : Forbidden (act)
- HATIM ; A place where oaths used to be administered
- HAWALAT : Novation
- HIBA : Gift
- HIBABI SHARTI'L-'IWAD : Gift on condition of an exchange
- HIBA BI'L-'IWAD : Gift on receiving something in change
- HIZANAT : Custody
- HUKM : Law; command; decree;order
- HUKMI : Symbolical (possession)
- 'IBADAT : Acts of devotion
- 'IDDAT : Period of probation
- IJAB : Proposal
- IJARA : Letting and hiring
- IKHTIAR : Volition
- IKARAH : Duress
- ILA : A form of divorce
- IMAN : Faith
- IQRA : Acknowledgment; declaration of faith;acknowledgment of legitimacy
- ISHARAT : Gestures or signs
- ISLAM : Muhammadan religion
- JAMAT : Community
- JANAYAT : Torts
- JIHAD : Religious war
- KAFIR : Ungrateful ; a non-Muslim
- KABIRSTAN/KHABARSTHAN : Graveyard
- KACHERI/KUTCHERI/KUTCHERY/ CUTCHERY : Amin's court
- KAFALAT : Suretyship
- KARANI A Village Revenue Officer in the : Amindivi group of islands
- KARAYMA : A type of escheat lands
- KARNAVAN : The oldest male member in a Marumakkathayam family.
- KARANAVAR : maternal uncle;who the tehsildar in court casesassists islands a senior citizenthe of
- KARYAKAR : Agent
- KATHIB : Assistant to Khasi.
- KHALIFA : Person who initiates the performance of Rathib
- KHATA : Mistake or accident
- KHASI/KAZI : A Muslim marriageswho functionary solemnises
- KHITAB : Speech; a communication from God
- KHULA' : Power consideration to dissolvewife given to for marriage
- KHUTBAH/KUTHUBIYATH : The sermon or oration delivered on Fridays at the time of zuhr or meridian prayer. It is also recited on the two great festivals ('IDU'L- FITR, 'IDU'L- AZHA) in the morning after sunrise .
- KITABAT : Writings
- KOLATHIRI : The ancient kingdom of Kolathunadu in North Malabar
- KOOTAM/KUTTAM : Assembly of citizens called by the Amin or other chief administrative officials of the islands
- KOYA : The highest caste of the Lakshadweep islands LABBUS : A sharp instrument used in the performance of Rathib
- MADRASA : A school where Muslim religious education is imparted.
- MANFAAT : Usufruct
- MAHAL : The object to which an act relates
- MAHR : Dowry
- MAL : Property
- MALIK : Owner
- MAPPILA : Malabar Muslim
- MARKAKALYANAM : Circumcision ceremony
- MARUMAKKATHAYAM : Matrilinear or Matriarchal system of inheritance
- MAULOOD/ MAULUD/ Muslim celebration for the birth
- MOWLID/MAULOOD : anniversary of a saint
- MELACCERI/MELACHERI : The low caste community of the Lakshadweep islands
- MOHIYUDEEN : One who keeps alive the religion
- MONEGAR : An office or post akin to that of a Revenue Inspector
- MOOPAN/MUPAN : Headman
- MOULAVI/ MUSALIAR : Muslim versed inpreacher theology or priest well- Islamic and who calls the faithful for prayers and leads the prayer
- MUJTAHID : Jurist
- MUKRI : A Muslim priest who calls for prayer and leads the prayer/The custodian of mosque property
- MUSHA Pre-emption
- MUSI : Testator
- MUTAT : Right to conjugal society; a present to the wife; temporary marriage
- MUTWALLI : A trustee of a wakf
- NADAPPAL : A last grade employee attached to the Amin
- NAMAZ : Prayer
- NERCHA : Offerings by devotees during the Mappila festival in honour of saints
- NIKKAH : Muslim marriage
- NISKARAPURA : Prayer house of women
- NIYAT : Motive
- ODAM : Sailing vessel
- ODI : A boat
- PALLI : A mosque PIR : Saint
- QABUL : Acceptance
- QAJI/QUAZI : A Judge; a Magistrate
- QAZI : Islamic Judge
- QISAMT : Partition
- QUR'AN : The book revealed to Muhammed
- RATTIB/RATIB/RATHIB : An Islamic ritual
- RAHN : Pledge
- RASUL : Messenger; Prophet
- RIBA : Usury RIDA : Consent
- SAGHIR : Minor
- SAJJADANASHIN : Literally means a man who sits on a sajja or prayer mat. He is the spiritual and temporal head of a Muslim religious institution known as Khanka where derivishers
- SALAH, SALAT : Prayers
- SHARI'AT : Legal Code
- STHANAMS : Titles
- SUNNA, SUNNAH, SUNNAT : Tradition which records the saying and actions of the Prophet
- SURAMBI/SRAMBI : An outhouse
- TANGAL : The Sayyids of the Mappilas and Lakshadweep Muslims
- TARWARD : A family
- TAHKIM : Arbitration
- TAHLIL : Consummation of marriage required for reunion with the previous husband
- TALAQ : Dissolution of marriage by the husband; repudiation;divorce
- THARAWAD, TARAVATU, : The joint martilineal family of THARAVAD Kerala and Lakshadweep
- THAVAZHI, TAVAZHI : A branch of a matriarchal family; a branch of a joint family being descendants of the same mother.
- THAMAN : Consideration; price
- THIYYA, TIYAN, THEEYAN : The Malabartoddy-drawing caste of coast
- TIKKAR : Thaumaturgical dance of the Sufi Riffari order of the Lakshadweep Islands
- TIKKAR-KAR : Persons performing the tikkar
- URUKKU : The amulet or talisman worn as a charm in the Lakshadweep islands
- VALIYA PERUNAL : The big festival; Id-Ul-AdhaId- Ul-Zuha (Bakrid)
- WASIYAT Bequest
- ZAKAT : Contribution of muslims in cash or kind for charitable purposes/Poor- rate
NOT MERELY A PIOUS WISH
38. It is time that the Government of India focused its attention on the personal laws applicable to the people of Lakshadweep Islands. They are Malayalam speaking Musalmans enjoying the status of Scheduled Tribes under the Constitution of India. While it could be said that there was some justification for the original migrators to adopt the matrilineal Marumakkathayam system of inheritance, it has to be examined whether continuance of the above system is advantageous to the people of this archipelago, particularly when, all the Hindu Joint Family systems including the Marumakkathayam system stand abolished on the mother land in Kerala with effect from 1-12-1976. Even in the Islands it is the Sheriath law which is followed in respect of self acquired properties.
Our decision that the plaintiff in his capacity as the de facto Karanavan of the Puthiyapura tarwad, is the customary Muthawalli of the plaint schedule mosque is based on the evidence in the case, besides the historical material and judicially noticed case law. But the fact remains that the said mosque is a public mosque in the sense that members of the Muslim public have a right of worship and the mahalvasis have a right to bury their dead. The system of Amins and Karanavans being at the helm of the adjudicatory process has ceased to exist four decades ago. Eventhough the Wakf Board there is a statutory body, its statutory supervision is qualitatively different from people's participation in the affairs of such public institutions. Privatization of God and God's property and a scramble for administration are all undesirable trends which in the long run will not be conducive to the democratic running of such religious institutions. In the mundane competition for temporalities and religious supremacy, everyone concerned should realise that it is the institution itself which may go into dilapidation and disrepair. What should be uppermost in the mind of all concerned should be the maintenance and upkeep of the Mosque and its properties for which people's participation is a necessary desideratum. We leave it there for the authorities to engage their attention to these aspects.
Dated this the 10th day of April, 2012.
V. RAMKUMAR, JUDGE. ani/ K. HARILAL, JUDGE.