- Apprentice Lawyer
In month of Ramzan, and a tall glass of cold Rooh Afza is about as conspicuous as any other item on the Iftaar menu. However, the popular drink seems to have gone missing from the shelves, much to the chagrin of eager fast breakers around the country.
What is the mystery behind the disappearance of the syrupy concoction made of herbs, roots, and whatnot? A matter pending before the Delhi High Court may hold the answer.
A dispute as to who should head Hamdard Laboratories (India) – the charitable institution or Wakf that manufactures Rooh Afza – has resulted in difficulty in procuring materials required for the product. The fairly complex litigation had even reached the Supreme Court, which seems to have temporarily solved the issue.
So, what exactly is the root (no pun intended) of the matter?
Hamdard was established in 1906 by Hakim Hafiz Abdul Majid. After his death in 1922, the company was taken over by his wife and two sons. His survivors executed a Wakf Deed in 1948 to manage the affairs of Hamdard. The deed provided that in case of death of any of the trustees, he would be replaced by his eldest son.
Eventually, Haji Hakim Abdul Hamid, the founder’s son, became the sole surviving Wakif Mutawalli (founding head of the Trust). In 1964, he appointed his two sons Abdul Mueed (born in 1935) and Hammad Ahmed (born in 1945) as Mutawallis (trustee members).
In 1995, the Wakif Mutawalli appointed his grandsons Abdul Majeed (eldest son of Abdul Mueed born in 1969) and Hamed Ahmed (eldest son of Hammad Ahmed born in 1977) as the fourth and fifth Mutawallis of the trust. Haji Hakim Abdul Hamid died in 1999, after which his eldest son Abdul Mueed took over as Chief Mutawalli or head of the Trust. Abdul Mueed, in turn, appointed Asad Mueed, his younger son born in 1973, as the fifth Mutawalli.
Things turned sour in 2015, when Chief Mutawalli Abdul Mueed passed away. The essence of the dispute is who should discharge the duties of Chief Mutawalli after the death of Abdul Mueed.
A number of suits were filed in the Delhi High Court, with various family members claiming to be Chief Mutawalli. Hammad Ahmed contended that since he was the senior-most surviving male descendant of the Wakif Mutawalli, he was entitled to take over as Chief Mutawalli. Meanwhile, Abdul Majeed, son of the deceased Chief Mutawalli, passed an office order claiming the post for himself.
A Single Judge Bench of the Delhi High Court in October 2017 prima facie ruled in favour of Hammad Ahmed, the eldest male descendant. This order was challenged as there were criminal cases pending against Hammad Ahmed, among other grounds. The Division Bench set aside the single judge’s order in November 2018, prompting Hammad Ahmed to approach the Supreme Court for interim relief.
Appearing for the appellant, Senior Advocate Kailash Vasdev placed before the Court amendments made to the Wakf Deed in 1973 laying down who should head the Trust after the death of the Wakif Mutawalli. The amendment states, among other things,
“The First Chief Mutawalli will be appointed by Wakif-Mutawalli. And thereafter the senior most male descendant in line of succession (of Wakif Mutawalli) and then holding an office of Mutawalli will be the Chief Mutawalli.”
He further argued that the rule of primogeniture is not contemplated by the Deed as amended in the year 1973 by the Wakif Mutawalli. In essence, the first born son of the Chief Mutawalli would not take over in case of his father’s death.
The amendment also states that a Mutawalli may be removed on the following grounds:
(1) He is a minor or insane or by reason of lack of education, experience or old age and weak health is unable satisfactorily to perform his duties as a Mutawalli;
(2) He is dishonest, addicted to alcohol, gambling or has been convicted of some crime involving moral turpitude.
Senior Advocate Mukul Rohatgi, on the other hand, argued that a notification declaring Hamdard as Wakf was held to be void by the Single Judge Bench. He also contended that since Hammad Ahmed staked his claim as Chief Mutawalli only in 2017, two years after Abdul Mueed’s death, the same suffers from laches and ought to be dismissed.
The Interim Order
The Supreme Court Bench of Justices UU Lalit and Hemant Gupta, however, decided that the Division Bench order ought to be set aside.
It accepted Vasdev’s argument on the rule of primogeniture, holding,
“The rule of primogeniture is not a rule applicable to the Muslims as per the Personal Law as held in Faqruddin’s case (supra). Therefore, the primary question between the parties relating to the appointment of Chief Mutawalli has to be decided on the basis of the construction of 1948 Deed and the amendments made in the year 1973 by the Wakif Mutawalli.”
The Court further dismissed the claim that there was a delay on the part of the appellant in staking his claim to become Chief Mutawalli.
As regards the criminal antecedents of Hammad Ahmed, the Court held,
“The argument that the Appellant is involved in criminal cases is again not relevant at this stage. 1973 Deed provided for disqualification of conviction in a criminal case involving moral turpitude. None of the criminal prosecution launched against the Appellant have ended up in conviction, therefore, there is no disqualification attached to the Appellant at this stage.”
Thus, the Division Bench order was set aside. In effect, Hammad Ahmed has been given the green signal to run the affairs of Hamdard until the main suit is decided by the Delhi High Court.
The Supreme Court also called for a speedy resolution of the case, holding that a maximum of three months will be given to each of the parties to lead evidence in the matter.
The end result is that Hamdard now has a head to man its affairs (albeit temporarily) and can now concentrate (no pun intended) of getting Rooh Afza back in the market. The company revealed that the drink should be available by the end of this month.
Read the Supreme Court’s order: