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Evidence Act
1872, S. 45 - Gazetteer is
admissible, being official
record evidencing public affairs
and Court may presume their
contents as genuine.
Held:
Harun-Ul-Rashid, J.
Gazetteer can be consulted on
matters of public history.
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 S.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
Bala Shankar Bhattjee & Ors.
v. Charity Commissioner, Gujarat
State (AIR 1995 SC 1967) the
Hon'ble Supreme Court also
relied on, as supporting
evidence, historical statements
of historians and the passages
in the historical books.
AIR 1995 SC
1967
Referred to
Mohammedan Law -
Does not generally recognize
hereditary right of
Mutawalliship unless there is a
custom and usage to that effect.
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 Mutawalliship 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.
AIR 1976 SC
1569
Referred to
ORDER
Harun-UI-Rashid, J.
The plaintiff in O.S. No.1/1998
on the file of the Wakf
Tribunal, Lakshadweep, Kavaratti
is the revision petitioner in
C.R.P. No.460/2006. C.R.P.
No.462/2006 is also filed by the
plaintiffs in O.S. No.1/1998 who
are defendants 1 to 3 in O.S.
No.1/2001. Both the suits were
jointly tried and disposed of by
a common judgment dated
20.5.2006 of the Wakf Tribunal.
By the impugned judgment the
Tribunal was pleased to dismiss
O.S. No.1/1998 and decreed O.S.
No.1/2001. Hence the Revision
Petitions.
2. O.S. No.1/1998 was filed
praying for a decree declaring
and holding that the office of
Mutawalli of the plaint schedule
mosque is vested with the
Pattakal family, that the 1st
plaintiff is duly chosen to be
the Mutawalli of the mosque and
for consequential perpetual
prohibitory injunction
restraining the defendants from
interfering with those rights of
the members of the Pattakal
tharawad.
3. Defendants Nos.7 to 10 in
O.S. No.1/1998 and another filed
O.S. No.1/2001 for a declaration
that none of the defendants has
got any special right to hold
the post of Mutawalli or Khazi
and the mosque belongs to the
entire members of the 'Mahal'
and also for framing a scheme
for election of a committee.
4. O.S. No.1/1998 was earlier
decreed and O.S. No.1/2001 was
dismissed by judgment and decree
dated 3.6.2003. But in C.R.P.
Nos.1757, 1908 and 1978 of 2003
filed by the defendants in O.S.
No.1/1998 and by the plaintiffs
in O.S. No.1/2001, the judgment
and decree dated 3.6.2003 were
set aside and remanded for fresh
disposal in accordance with law
after giving a reasonable
opportunity to both sides to
adduce further evidence, if any.
5. The parties are hereafter
referred to as plaintiffs and
defendants in O.S. No.1/1998 as
in the trial court's judgment.
The facts of the case as stated
in the plaint in brief are as
follows:
The plaintiffs are the
senior-most male members of
different thavazhies of Pattakal
family. Defendants 1 to 3 are
some of the members of
Beethathabiyyapura thavazhi of
Aliathummada tharawad.
Defendants 4 to 6 have been
putting forward various claims
against the interests of
Pattakal and Aliathummada
tharawad and they are impleaded
as representatives of Andrott
public. Defendants 7 to 10 are
impleaded as per the order in
I.A. No.26/2000 dated 11.12.2000
pending suit. The mosque
detailed in the plaint schedule
in O.S. No.1/1998 is a public
Wakf registered with Lakshadweep
Wakf Board, Kavaratti Island.
The said mosque was originally
built and dedicated by Saint
Ubaidulla who had brought Islam
to Lakshadweep Islands during
7th century A.D. His descendants
constituted Pattakal family
represented by the plaintiffs.
The original Mutawalli of the
Wakf was the Wakif Saint
Ubaidulla. By virtue of
immemorial custom and usage, the
office of Mutawalli and
traditional Khazi of the mosque
was vested and devolved on the
members of the Pattakal family
who were conferred with the
further discretion to choose the
most eligible and qualified from
among them to be the de facto
Mutawalli, de jure Mutawalli
being the entire body of members
of the Pattakal family.
6. It is further averred in the
plaint that the descendants of
Saint Ubaidulla are the present
members of Pattakal tharawad,
that after the constitution of
the Lakshadweep Wakf Board, the
mosque was registered with the
Lakshadweep Wakf Board in 1967,
that on 1.11.1968 there was a
Gazette publication by the
Lakshadweep Wakf Board notifying
the registration of the Wakf
with the Lakshadweep Wakf Board
inter alia showing the
name of the Mutawalli as members
of the Pattakal family. Not only
that, all along, the members of
Pattakal family alone have been
functioning as Mutawalli and
traditional Khazi of the mosque
and no one else had held these
offices till today. Both the
office of the Mutawalli of the
Wakf as well as the traditional
Khazi have been exercised and
performed only by one or other
member of the Pattakal family,
right through and all along
during the past several
centuries and that the immediate
last Mutawalli of the wakf was
Pattakal Pookoya Thangal who
died on 20.8.1996. After his
death, the 1st plaintiff became
the Mutawalli and has been
functioning as such. A member of
the Pattakal family who is
chosen from among the members of
their family for assumption of
office as mutawalli of the wakf
has been submitting the
requisite returns under the
provisions of the Wakf Act to
the Lakshadweep Wakf Board and
remitting contributions from
time to time as and when demands
were made on the basis of the
returns submitted. In short, it
is seen that both the office of
Mutawalli and that of
traditional Khazi of the plaint
schedule was undisputedly being
held by the chosen member of the
Pattakal family. When a feeble
attempt was made to constitute
an advisory committee to aid and
advise the de facto Mutawalli in
the performance of his duties,
the then de facto Mutawalli,
namely, late Koyammakoya Thangal
is purported to have entered
into a compromise decree in O.S.
No.10/1974. The said compromise
is null, void and non est
for several reasons. The said
suit was not a representative
suit much less was the said suit
filed impleading the Mutawalli
in his capacity as the
accredited and duly authorised
Mutawalli. The valuable rights
of the members of Pattakal
tharawad vis-a-vis the
office of Mutawalli-cum-Khazi of
the ancient Jum-ath Mosque were
incapable of abandonment,
release or surrender by any one
member of the Pattakal tharawad
and the entitlement of
privileges appertaining to the
office of the Mutawalli and
traditional Khazi of the mosque
which vests in the Pattakal
family remained unaffected and
continued to vest in the family
without in any way being lost on
account of any act, thing or
deed done or purported to be
done by any single member. On
the other hand, the office of
the Mutawalli-cum-Khazi of the
mosque was continued to be held,
discharged and performed by late
Koyammakoya Thangal prior to the
filing of O.S. No.10/1974,
during the pendency of the said
suit and subsequent to the
disposal of that suit. The
committee referred to in the
proceedings of O.S. No.10/1974
was a still-born child, it did
not come into existence and had
not exercised any of the powers
or duties of Mutawalli. A cloud
on the rights and entitlement of
the family on the above office
is being raised by the
defendants and so the plaintiffs
are constrained to file the
suit.
7. In the joint written
statement filed by defendants 1
to 3 it is pleaded inter alia
that the claim that the mosque
was built by Saint Ubaidulla is
denied, that the mosque was
built by the inhabitants of
Andrott Island, that the claim
that the members of Pattakal
tharawad are the descendants of
Saint Ubaidulla is false, that
the Pattakal tharawad was never
the traditional Mutawalli or
Khazi of the mosque in dispute,
that the Amins and Karanavans
were administrating the Island
as representatives of the public
and that the members of Pattakal
tharawad has no vested right
conferred on them to act as
Mutawalli of the mosque. It is
also pleaded that by the end of
the Amin/Karanavan system, the
people elected a committee of 14
members representing all the
four blocks and that the said
committee is the Mutawalli of
the mosque, that in the year
1974 Pattakal Koyammakoya
Thangal was removed from the
presidentship of the committee,
that O.S. No.10/1974 and O.S.
No.11/1974 were compromised and
a compromise petition was filed
and decree was passed, that the
compromise decree is binding on
the plaintiffs and that only the
elected committee from among the
public has got a right of
Mutawalliship of the mosque. The
5th defendant also filed a
written statement raising more
or less the same contentions of
both of the written statements
of defendants 1 to 3. In the
written statement filed by the
4th defendant after denying the
contentions of the plaintiffs,
it is further alleged that the
Tribunal has no jurisdiction to
entertain and decide the suit,
that the public of Andrott Mahal
are entitled to the management
of the mosque, that Pattakal
tharawad has no exclusive right
for the management, that the new
committee as per the compromise
in O.S. No.10/1974 and O.S.
No.11/1974 was never constituted
and elected and so the committee
as on 16.2.1981 had continued to
manage the mosque as Mutawalli
till 1986, that in 1986
consequent on the dispute that
arose between two factions, an
arrangement for the management
of the mosque was evolved and as
per the said arrangement
Pattakal Pookoya Thangal, the
then Khazi, and three Khatteebs,
namely defendants 1 to 3, were
jointly entrusted with the
management of the mosque. After
the death of Pattakal Pookoya
Thangal in 1996, the other three
persons were jointly managing
the mosque andtherefore prayed
that until a new arrangement is
made by the people of the
locality, the plaintiffs have no
manner of right or possession of
the mosque as Mutawalli or
Khazi, etc.
8. Defendants 7 and 8 in their
written statement pleaded that
the mosque in question was
constructed by the people of the
locality, that no family has got
any vested right to become the
Mutawalli of the mosque, that
the committees elected by the
people of the locality are
managing the affairs of the
mosque, that now there is no
proper management of the affairs
of the mosque and that in such
circumstances a scheme has to be
framed for the management of the
mosque electing a committee from
among the people. Other
defendants have also filed
separate written statements
virtually reiterating the
contentions raised in the
written statement of other
defendants and also pleaded that
they have no objection in the
Court framing a scheme for the
proper management of the mosque.
9. Defendants 7 to 10 and
another, who are the plaintiffs
in O.S. No.1/2001 sought a
declaration in the suit that
none of the defendants has got
any special right to hold the
post of Mutawalli or Khazi and
that the mosque belongs to the
entire members of the Mahal with
a further prayer for framing a
scheme for election of a
committee to manage the affairs
of the mosque. In the plaint the
plaintiffs reiterated the
contentions raised in their
written statement in O.S.
No.1/1998. Defendants 1 to 3 in
O.S. No.1/2001, who are the
plaintiffs in O.S. No.1/1998
raised the same contentions as
in O.S. No.1/1998 and they also
contended that for framing a
scheme for the functioning of
the mosque, the Tribunal has no
jurisdiction to entertain such a
suit, that the power conferred
on other authority cannot be
usurped by the Wakf Tribunal,
that the second suit was filed
with a mala fide
intention of delaying the
disposal of O.S. No.1/1998 etc.
and prayed for dismissal of the
suit.
10. Before the Tribunal P.Ws.1
and 2 were examined and Exts.A-1
to A-22 were marked on the side
of the plaintiffs, D.Ws.1 and 2
were examined and Exts.B-1 to
B-17 were marked on the side of
the defendants before the remand
and after the remand P.W.1 and
D.W.2 were recalled and further
examined and Exts.A-24 to A-39
and Exts.B-18 to B-23 were
further marked.
11. After a detailed
consideration of the oral and
documentary evidence adduced in
this case, the Tribunal came to
the following conclusions:
“23. Whatever be, the
traditional belief in the island
is that Saint Ubaidulla was
instrumental to the conversion
of the people of the islands who
were originally Hindus or
Buddists. For arriving at a
decision in this case that
whether it is Saint Ubaidulla
who constructed or dedicated the
mosque or it was constructed by
the public is very much
material. The probability is
that Saint Ubaidulla who was
instrumental in the conversion
of the people might have got a
mosque constructed by the new
converts in a piece of land
donated by the thenChieftain.
The islanders are being
Marumakkathayees, even after the
conversion to Islamic faith, the
present Pattakal family may
probably be the descendants
though his female line. The
report of R.H. Ellies shows that
the Khazis of the Island were
from the family of the
descendants of Hazarath
Ubaidulla even in the year 1920.
24. As noted by Mr. Ellies and
the Gazetteer and other
historians, Ubaidulla married a
lady from Pendamveli tharawad of
Amini island and settled at
Andrott island. So the Pattakal
family at Andrott is the
tharawad name given to the
descendants of Ubaidulla and
Hameedathbi. Only the doubt
among the writers is about the
period of conversion and the
establishment of Juma Mosque at
Andrott and other islands
happened. Let it be in the 14th
century as noted by Ellies and
the Gazetteer. So by all
probabilities the plaintiffs'
Pattakal family may be the
descendants of Hazarath
Ubaidulla. But both Ubaidulla
and his family were aliens to
Andrott. They had no land and so
the land where the mosque
situated was not a land donated
by them. It means Ubaidulla or
his family were not the wakifs.
There is no positive evidence to
prove that Saint Ubaidulla
constructed and dedicated the
mosque and was the first
Mutawalli and his
marumakkathayee heirs through
his female line traditionally
continued to be the Mutawalli.
*** ***
***
****
***
27. There is no documentary
evidence to prove the case of
the defendants that the suit
mosque was managed by the
publicrepresentatives, the Amins
and Karanavans and then an
elected committee.
*** ***
***
****
***
31. It is for the parties who
claims under the decree in O.S.
No.10/74 and the compromise
therein to prove that it is a
valid and binding decree.
Admittedly there was no
applications for the leave of
the court for the compromise in
O.S. No.10/74 or in O.S.
No.11/74 before the Munsiff
Court, Andrott. Admittedly no
notice was given to the
plaintiffs' family who is said
to have been represented by its
Karanavan the plaintiff in O.S.
No.10/74. To bind the compromise
on the plaintiffs, the decree is
to be shown valid and not void,
since the compromise was without
leave of the court and without a
notice under sub-r.(2),
R.23(3)(B) of Civil Procedure
Code the decree is expressly
'void'. I have no hesitation to
hold that the compromise and
decree in O.S. No.10/74 dated
16.2.1981 is void and so not
binding on the plaintiffs in
O.S. No.1/9
32. So the compromise in O.S.
No.10/74 and 11/74 shall not be
binding on any of the parties to
this suit.
33. So probably after the
compromise, the committee had
not functioned and no new
committee as per the terms of
the compromise was constituted.
It is so admitted by the 4th
defendant in his written
statement.
*** ***
***
****
***
35. On the basis of the
pleadings in this case, by all
probabilities it can be
concluded that no committee had
functioned during or after the
compromise and decree in O.S.
No.10/74. So the contention of
the defence that the committee
elected by public has been
managing the affairs of the
mosque and that committee is the
Mutawalli of the mosque is
untenable and unacceptable. When
Ext.A-3 notification and A-4
registration before the Board in
the year 1967-68 took place, if
a managing committee was in
existence and was functioning
so, it ought to have been
reflected in the registers of
the Wakf Board. But this mosque
in dispute is shown as managed
by the Pattakal family under the
supervision of Amins and
Karanavans. The Juma Mosque of
Andrott island is being a very
important and a very revered one
by the islanders, 'supervision
of Amins and Karanavans on the
mosque was prominent'. By this
way we can only arrive at the
conclusion that the Amins and
Karanavans were not directly
managing the affairs of the
mosque.
36. But admittedly Koyammakoya
was the Karanavan of Pattakal
family at that time and he had
the right to represent the
tharawad as Karanavan.
Koyammakoya was chosen Khazi and
Mutawalli of the mosque as per
plaintiffs at that time, if so
he had the right to represent
the family and any compromise
arrived at by him is binding on
the Pattakal family but for the
voidness of the decree as
discussed above.
*** ***
***
****
***
38. Claim by Pattakal Sayed
Ahammedkoya for traditional
Khaziship has been rejected by
the Hon'ble High Court of Kerala
in O.P. No.11211/97. Admittedly,
in the year 1998 one Kunnasada
Hamzakoya was appointed as Khazi
of Andrott island by the
Administrator, U.T. of
Lakshadweep. The Pattakal family
has lost their right to be Khazi
of Andrott island and so they
have no vested right to be the
Mutawalli also.
*** ***
***
****
***
42. On the evidence given by
D.W.1, D.W.2 and the document
produced from their side will
not prove the existence of the
committee and managing the
affairs of the mosque as
Mutawalli of Andrott Jumah
mosque. The compromise entered
in O.S. No.10/71 before the
Munsiff Court, Andrott for the
constitution of an elected
committee had not been acted
upon and the decision in that
compromise had not even reported
to the Wakf Board. O.S. No.10/74
was not a representative suit.
There is no evidence to show the
committee members had performed
or acted so. There is no
evidence at all to show that
after that compromise any
general body meeting of the
members of the Mahal was called
to elect a committee. Pattakal
Koyammakoya and after him,
Pattakal Pookoya acted as
Mutawallies of the mosque in
their capacity as Khazi and the
Karanavans of Pattakal family.
They have not relinquished their
right of management to any
public representative.
*** ***
***
****
***
44. These documents throw light
that the Pattakal people along
with Aliyathammada who were the
reversioners of each other or
branches of one family were
enjoying and managing the
properties within the compound
of the mosque. The word 'Mutawalli'
was not in use in these islands
earlier to the extension of Wakf
Act, 1954 to the islands.
45. Exts.A-3 and A-4 are the
documents relied on by the
plaintiffs to prove their case
of Mutawalliship. So the defence
version that these are all
concocted documents for the
purpose of this case is not
tenable.
46. The contention of the
plaintiffs that the de facto
Mutawalli is chosen by the
members of Pattakal family or
the Amin and Karanavans
appointed Mutawalli in
consultation with the family
members is not proved by any
evidence.
*** ***
***
****
***
48. These documents i.e.
Exts.A-6 to A-10 will go to show
that Pattakal Pookoya Thangal
had submitted accounts and was
conducting nercha. The Wakf
Board had accepted him as
Mutawalli.
*** ***
***
****
***
54. But the admission of
Koyammakoya in Ext.B-5
deposition that a committee was
constituted to manage the
affairs of the mosque and he was
elected the President of the
committee goes against the claim
of the plaintiffs in O.S.
No.1/98 but it supports the case
of the defence. So this shows
that from 1966 onwards there was
committee till 1972 and it was
functioning and had been keeping
minutes. So if at all the
Pattakal family was performing
as de facto Mutawallies, that
tradition and custom was
breached in 1966 and up to 1974
*** ***
***
****
***
56. As discussed earlier, the so
called committee even after the
compromise has not been in
existence or have functioned so
unless the defendants succeeds
to show that there has been and
there is a committee of public
representatives for the
management of the Wakf mosque.
Exts.A-3 and A-4 notification
and registration will be binding
on all the concerned.
*** ***
***
****
***
60. So these public mosques are
managed or supervised by the
then Administrative Authority.
The Amin and Karnavans who are
also public representatives not
elected but nominated. The
Karanavans are normally the
tharawad Karanavans of prominent
families of the island. So it
shows that the management is
vested with the heads of
families of island as public
representatives.
*** ***
***
****
***
62. So on the basis of the above
discussion it is concluded that
the plaintiff in O.S. No.1/98
have failed to prove that they
are the traditional and
customary Mutawalli of the
mosque, 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 Mutawalli of the mosque.
*** ***
***
****
***
64. It cannot be concluded that
the Pattakal family was the
traditional customary Mutawalli
of Andrott Juma Mosque. The
right of the family is not
established by any evidence of
unbreached custom.
65. There is also no reliable
evidence to show that 1st
plaintiff ever acted as
Mutawalli of the mosque.
*** ***
***
****
***
68. Having found that the
plaintiffs in O.S. No.1/98 have
no vested right to be the
Mutawalli of the mosque and only
the right of management is
vested in the public and no
committee of management is in
existence, there is a clear
vacuum and so vacancy
69. The mosque needs substantial
repairs. Some days before, a
wooden pillar of the mosque near
the pulpit fell down. If urgent
repairs are not done, it is
afraid that the mosque itself
may fall down. So a committee
for the management of the mosque
is essential and so prayed for.
*** ***
***
****
***
71. Though there was a committee
from 1966 onwards, a written
constitution or bylaws for the
committee was not adopted or in
existence. On consideration of
the evidence and the disputes
before this court, I find there
is sufficient ground to frame a
scheme for the management of the
public Wakf viz. Andrott, Juma
Mosque and its properties.
*** ***
***
****
***
74. On the basis of findings on
issue Nos.3 and 8 the plaintiffs
are not entitled to a
declaration that they are the
traditional and continuing
Mutawalli of the Andrott Juma
Palli under hereditary right and
any other consequential relief.
So the Suit O.S. No.1/98 is
liable to be dismissed.
75. On the basis of the finding
on issue Nos.5 and 7 the suit in
O.S. No.1/2001 has to be decreed
and so a preliminary decree is
passed that the right to manage
the mosque is vested in the
members of the Mahal and for the
proper and smooth management of
the affairs of the mosque a
scheme is to be settled. The
parties to the suit and the Wakf
Board shall file draft scheme
for the purpose within five
months of this decree.”
12. The correctness, legality
and propriety of the decree and
judgment passed by the court
below is under challenge in
these Revision Petitions.
13. The trial court noted that
the defendants have not denied
the story of Ubaidulla and the
conversion of the people of the
island to Islam and that they
have only denied the right of
the plaintiffs as descendants of
Ubaidulla and their
Mutawalliship to the mosque. All
the historians and authoritative
books have referred to the
origin of the mosque and the
beginning of Islamic faith in
the islands. The book marked as
Ext.A-36 titled as “The Short
Account of the Lakkadive Islands
and Minicoy” by R.H. Ellis
published in the year 1924 is a
book which contains the
description of history,
administration and revenue and
the people, occupations and
trade, gazetteer etc. At page 16
of the book it is stated that
“the tradition of the Lakkadives
ascribes the conversion to an
Arab Saint named Ubaidulla, that
he came to Amini island in AH
41, but being unable to convert
the inhabitants, departed to
Androth where he was more
successful and not only
converted the island, but
established the family which
till 1920 held the Khaziship of
Androth, an office held in the
greatest veneration throughout
the islands. The last Khazi in
that family professed to be 24th
descendant in direct line from
the saint”.
“Finally he returned to Androth
where he remained until his
death. His tomb is in the
Juma-ath Mosque of Androth and
the mosque is in consequence
held in the greatest
veneration.”
A copy of pages 44 and 45 of the
Gazetteer of India of
Lakshadweep islands is produced
as Annexure A-7. In Chap.II -
'History' under the head
“Conversion to Islam” it is
stated “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
island is that it was brought
about by an Arab Saint named
Ubaidulla who reached Amini in
Hijara 41 (AD 663)”.
*** ***
***
****
***
“and finally returned to Androth
where he spent the rest of his
life”.
***
***
***
****
**
“Saint Ubaidulla is universally
known in the Islands as Mumbe
Mullaka, which is a
mis-pronouncement of 'Mumbe
Musaliyar Kaka' meaning 'the
first Musaliyar'. He died at
Androth and his grave is
enshrined there in a mosque and
was accordingly regarded with
deep veneration. All the Juma
Mosques in the Islands of Amini,
Kalpeni, Agathi and Kavarathi
are believed to have been
founded by the saint.”
At page 569 of Encyclopedia
Britannica, marked as Annexure
A-5, the following portion of
the paragraph reads as:
“The Islanders were converted to
Islam by an Arab Apostle named
Mumbae Mulyaka whose grave at
Androth still gives a peculiar
sanctity to the island. The
Khazi of Androth was in 1847,
still a member of his family and
was said to be the 22nd who had
held the office in direct line
from the saint.”
In copies of pages 47, 48 and 49
of Ext.A-35 book dated
14.4.1960, the aforesaid facts
are stated. It is also stated at
pages 48 and 49 that the
foundation stone for the
construction of Juma Masjid and
a house was laid on Monday, 11th
Dulha 41 (Hijara). The author
has stated that the house which
was constructed during Hijara 41
is the tharwad by name Pattakal
and that the descendants of
Ubaidulla are still living in
the said house and that the post
of Khazi held by Ubaidulla and
his children is still held by
the members of the Pattakal
tharawad. Again, in the Arabic
book titled “Futhuhathul Jezair”
(Malayalam translation) it is
stated at page 24 that for and
on behalf of Saint Ubaidulla,
the Juma-ath Mosque and a house
were constructed at the
instruction of the Saint, 200
labourers were involved in the
construction work as instructed
by the Saint, that the
foundation stone for the mosque
and the house was laid on
Monday, Dulhaj 41 (Hijara). At
page 102 of the book it is
stated that his family is
Pattakal tharwad and that they
are the traditional Khazis till
date. It is stated at page 104
of the said book that the first
Khazi was Saint Ubaidulla and
after his death, his son became
the second Khazi. At page 110 it
is stated that on the death of
Khazi Sri Ahammed in 1308, Khazi
Kunjikoya of the same family
took charge and he was
recognised by the Arakkal Ali
Raja on 10th Ramzan 1312.
14. In the above-mentioned
writings of the historians, it
is an undisputed fact that
Androth Juma Mosque is the first
mosque in the islands. In the
book written by R.H.Ellis ICS,
marked as Ext.A-36, it is stated
that “Saint Ubaidulla not only
converted the island, but
established the family, which
till 1920 held the Khaziship of
Androth, an office held in
greatest veneration throughout
the islands”. In Annexure A-5
Encyclopedia Britannica produced
before this Court, at page 569,
it is reported that the Khazi of
Androth in 1847 was still a
member of his family and was
said to be the 22nd who had held
the office in direct line from
the saint. Annexure A-8 book at
page 110 also refers to Sri
Khazi Ahammed from Pattakal
family and on his death Khazi
Kunjikoya from the same family
assumed the office of Khazi. It
is also written at page 105 that
the first Khazi in Andrott was
Saint Ubaidulla and the second
Khazi is his son. It is also
stated in Annexure A-6 that
Pattakal family members
continued to be the Khazis by
tradition. From the historical
books, we have noticed the fact
that the Khazi of Andrott (Khazi
and Mutawalli 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 A-5 and in
1920 as reported in Annexure
A-36 book by R.H.Ellis are from
the members of the Pattakal
family. 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.
15. The history of the island,
its administration, revenue, the
people, occupations, trade etc.
are historical facts. All such
facts are contained in the
historical books. 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, that he returned to
Androth where he remained until
his death, that his tomb is in
the Juma-ath mosque of Androth
and that the office is held in
the greatest veneration. The
Gazetteer of India of Lakshadeep
island also speak about the
religious transformation brought
over by the conversion of the
entire population to islamic
faith, that it was brought about
by Arab Saint who reached the
island in A.D 663 (Hijara 41)
and that he remained in Androth
island till his death and that
in Androth his grave is
enshrined in a mosque. In
Ext.A-35 book it is written that
the foundation stone for the
construction of Juma-ath Mosque
and a house was laid on Monday
11th Dulhaj 41 (Hijara). In the
book it is further written that
the house so constructed by the
Saint is the tarwad by name
Pattakkal, that the house is
still in existence in the
renovated form, that the
descendants of Ubaidulla are
still living in the said house
and that the family members
still hold the post of Khazi (Khazi
and Mutawalli are known by the
name Khazi). There is no
difference of opinion among the
historians or in the Gazetteer
of India notification about the
conversion of people by Saint
Ubaidulla, the establishment of
the Androth Juma-ath mosque in
A.D. 663 (Hijara 41) and the
construction of the house and
the continuance of the residence
of the family members of the
Saint Ubaidulla in the house and
the holding of Khazhiship by the
members of his family in
succession. All the historians
have definite and recorded
unanimous opinion about the said
historical fact and nobody had
recorded any different opinion.
The popular belief of the
islanders is also the same and
it was so stated in the
historical writings. 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 recorded that the Pattakkal
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/Mutawalli
of the said mosque. It is a
proved fact that he spent the
rest of his life in Androth
andhis tomb is in the Juma-ath
of Androth. It can be
legitimately and reasonably
inferred that he was the
Mutawalli 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
Lakshdeep 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.
17. After entering such a
conclusion in favour of the
plaintiffs, strangely, the court
below finally concluded that
both Saint Ubadulla and his wife
were aliens to Androth, that
they had no land and so the land
where the mosque was situated
was not a land donated by them,
that Saint Ubaidulla and his
family members were not Wakf is
and that there is no positive
evidence to prove that Saint
Ubadulla constructed and
dedicated the mosque and that he
was the first Mutawalli and his
Marumakkthayee heirs continued
to be Mutawalli. The said
conclusions and findings are
contradictory and inconsistent
with the conclusions arrived at
by the learned Judge in the
previous sentences and
paragraphs of the judgment. The
final conclusion entered by the
learned Judge in paragraph 24
that Saint Ubadulla is an alien
who had no land and therefore
the mosque situated in that land
is not one constructed and
dedicated by him and that there
is no positive evidence in
support of it and that he had
not acted as the first Mutawalli
and his descendants did not
continue to hold mutawalliship
are findings recorded
incorrectly and inconsistent
with his own conclusions. After
noting down all the historical
facts proved by the historical
books and official publication
and entering the findings on
that basis, the learned judge
need not to have further probed
for positive proof regarding the
donation of the land,
construction of the mosque,
dedication etc. Apart from the
evidence noted above and the
oral evidence recorded in the
suit, no further positive
evidence is possible also in
this case since the construction
of the mosque was in AD 663 (41
Hijara).
18. It is urged by the
contesting respondents that what
is stated in the historical
books and Gazetteer of India
cannot be treated as evidence
and therefore the writings
recorded in those exhibits
cannot be read as evidence. 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 Mutawalli of the
mosque and his descendants
continued as Mutawallies.
Ext.A-1 document shows that one
Ahmed Koya of the Pattakkal
family was the Khazi as on
6.12.1892 and Ext.A-2 document
proved that Kunhikoya Thangal of
the same family was the Khazi as
on 26.1.1933. Ext.B-5 in O.S.
No.10/1974 shows that the
plaintiff therein was the
Mutawalli from 1959. His
evidence also shows that his
predecessors had been the
Mutawallies for generations in
continuation. The historical
statement of historians also
corroborate the gazetteer of
India. All material particulars
would establish that Saint
Ubadulla and his descendants
held the post of Khazi and
Mutawalli in succession.
19. It has been held by the
Honourable Supreme Court in the
decision reported in Srinivas
Ramanuja Das v. 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 Gazetteer of
the Bombay Presidency Volume III
published in 1879 is admissible
under S.35 read with S.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 S.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.
21. According to the plaintiffs,
by virtue of immemorial custom
and usage, the office of
Mutawalli of the Wakf and
traditional Khasi of the mosque
has become vested and devolved
on the members of the Pattakal
family who were conferred with
the further discretion to choose
the most eligible and qualified
from among them to be the de
facto Mutawalli, the de jure
Mutawalli being the entire body
of members of the Pattakal
family.
22. In the historical books
referred to earlier,
particularly in the portions
extracted in the proceeding
paragraphs, it is recorded that
the mosque was originally
established by Saint Ubaidulla
and his descendants in the
female line continued one after
another as Khasis of the mosque.
In Ext.B-5 deposition of the 1st
plaintiff in O.S. No.10/1974 on
the file of the Munsiff, Andrott
which was a suit filed by
Pattakal Koyammakoya against the
defendants therein, he has
deposed that the post of Khasi
was held by the Pattakal
tharawad by custom and usage.
The plaintiff therein deposed
that he became the Mutawalli and
Khasi in 1959 and continued till
the date of deposition i.e. on
28.4.1977. He testified that his
immediate predecessor was
Pattakkal Sri Syed Koya and Syed
Koya succeeded as Khasi from
Pattakal Ahammed Koya and
Ahammed Koya succeeded Pattakal
Kunjikoya and Kunjikoya
succeeded Pattakal Ahammed and
that he is the Khasi and
Mutawalli in Ubaidulla's
descendants' line. The above
discussed documents viz.
Exts.A-36, Annexure A-5,
Annexure A-6and B-5 show that
the post of Mutawalliship and
traditional Khasiship were held
in succession by members of
Pattakal tharawad. In Ext.A-1
compromise petition of the year
1892 submitted before the
Assistant Collector in respect
of a dispute regarding the rites
to be performed in the disputed
mosque, there is an indication
that the Pattakal family member
was the Khasi (Mutawalli) of the
mosque. In Ext.A-2 copy of
another compromise petition of
the year 1933 which also relates
to disputes regarding the
conduct of rites to be conducted
in the disputed mosque, there is
reference to Pattakal Kunjikoya
Thangal as Khasi. Ext.B-5
deposition of Sri Koyammakoya
Thangal and Exts.A-3, A-4 and
A-5 documents of the Wakf Board
and Ext.A-11 affidavit prove
that Pattakal Koyammakoya
Thangal who died in 1981 was the
Mutawalli of the mosque. The
documents marked as Exts.A-6,
A-7, A-8 and A-9 also proves
that Pattakal Pookoya Thangal
who died in 1996 was the
Mutawalli of the mosque from
1981 to 1996. From the documents
produced as Exts.A-17, A-18,
A-19 and A-20, it is further
proved that the next Mutawalli
was Pattakal Cheriyakoya.
Ext.A-3 is a Gazette
notification issued by
Lakshadweep Wakf Board under
S.5(2) of the Wakf Act, 1954.
Entry No.158 in Ext.A-3
notification relates to Andrott
Juma-ath. In the column 'name of
Mutawalli', it is shown as
'members of Pattakal under the
supervision of Amins and
Karanavans'. Ext.A-4 is the
registration of Wakf viz.
Juma-ath mosque, Andrott. In
Ext.A-4 which
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