Case: SYEDA NAZIRA KHATOON (D) BY LR Vs. SYED ZAHIRUDDIN AHMED BAGHDADI AND OTHERS

another person, he cannot undertake such a transfer, unless such a power is expressly given to him by the wakif in the wakf deed. The following excerpt from Mulla?s Principles of Mohammedan Law, Mulla?s Principles of Mohammedan Law (21 st edn., 2017) at page 298. is relevant in this context:?S214: Office of mutawalli not transferable – A mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder…?This view is also echoed by other scholars including Asaf A.A. Fyzee. Asaf A.A. Fyzee, Outlines of Muhammadan Law (5 th edn., Tahir Mahmood) at page 249. We may also fruitfully refer to two decisions of the High Court of Kerala in this regard. In Badagara Jumayath Palli Dharas Committee v. Peedikayalakath Ummerkutty Haji, AIR 2002 Ker 56 the High Court had to decide the validity of a similar agreement, by which the mutawalli had transferred his office to a society. Adverting to the aforementioned excerpt from Mulla?s Principles of Mohammedan Law (supra), the Court observed that there cannot be any transfer of mutawalliship and held the agreement of transfer to be invalid.In Abdul Latheef v. K.P. Abdurahiman, (2014) 1 KLJ 329. the Kerala High Court had occasion to deal with the validity of a transfer of the mutawalli?s office to a Committee, and held the same to be invalid. The following observations from the decision are relevant:?24. The upshot of the discussions is that Muhammadan Law does not generally empower a mutawalli to transfer his right during life time. There is a clear distinction in the matter of powers between the appropriator or the waqif who himself becomes the first mutawalli and a mutawalli appointed by the waqif for administering the wakf. Although the waqif may resign his office as first mutawalli and out of his own residuary or general powers as waqif appoint his own successor, the mutawalli appointed by the waqif or any other person succeeding such a mutawalli has no such unbridled power. All the leading authorities on Muhammadan Law declare that a mutawalli cannot assign or transfer his office to anyone or appoint another during his life time, unless he is clothed with powers which are so general in nature.?10. In light of these pronouncements and authoritative texts on Mohammedan law, it is more than clear that the mutawalli does not have a general power to assign or transfer his office to another person, unless he is given such powers by the wakf deed itself. In the instant case, the wakf deed does not give the mutawalli any such power to select another person as the future mutawalli on his demise, by creating a trust deed or any other instrument to that effect. In the absence of such an authorization, the transfer of the office of mutawalli by Syed Badruddin Ahmed by way of a trust deed in favour of his wife, clearly went beyond the purview of his powers and the settled principles of Mohammedan law. The succession of the office of mutawalli should be in accordance with the intention of the wakif who created the wakf, and the same cannot be subverted through any other document contrary to the intention of the wakif. Here, given that Nazira Khatoon was the wife of the last mutawalli and not a direct descendant in the family, she would not have been entitled to the mutawalliship even if the wakf deed were to be interpreted broadly to include female descendants. Thus, the creation of the trust deed to alter the succession of the office of mutawalli in her favour, is tantamount to changing the terms of the original wakf deed. It is a subversion of the intent underlying the wakf deed and is illegal, as it goes beyond the powers vested with the mutawalli. The claim of late Nazira Khatoon to the mutawalliship of the said wakf estate is therefore unsustainable.11. The second question to be considered is whether the daughters of the last mutawalli and Nazira Khatoon, including the Appellant herein, would qualify to be the mutawalli under the express terms of the wakf deed. For this, the term ?putro poutradi korme? requires to be interpreted.12. Different translations of the wakf deed have been produced before us. While the translation adduced by the Appellant at Annexure P-1 interprets ?putro poutradi krome? to mean ?through successive generations or successors?, the translation adduced by the Respondent No.1 at Annexure R¬1 interprets it as ?sons and grandsons in succession?.We are inclined to agree with the interpretation put forth by the learned counsel for the Respondent(s). Admittedly, the official translation before this Court indicates that the term ?putro poutradi krome? means future generations or descendants. This is also supported by the dictionaries cited by the Counsel for the Appellant. However, it is to be noted that the same source also shows that the word ?putro? means son and grandson. In reading and interpreting the term ?putro poutradi krome?, the meaning of the individual words must also be considered and accounted for. A combined reading of these terms lends support to the view that ?putro poutradi krome? means son and grandson, generation after generation, and therefore does not include any female descendants.13. Following this meaning, it becomes clear that the original wakf deed did not envisage female descendants to fall within the purview of these words and hold the office of mutawalli. Thus, Nazira Khatoon or her daughters (including the Appellant herein) cannot stake any claim to the mutawalliship of the wakf estate. Instead, being the nephew of the last mutawalli, Respondent No. 1 herein is a male lineal descendant of the original mutawalli, and is therefore entitled to hold the office of mutawalli as per the wakf deed. While it is not in dispute that women can also hold the office of mutawalli under Mohammedan law, on the facts at hand, it is clear that the wakif intended to create the mutawalliship only in favour of male descendants, from generation to generation.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. In light of these pronouncements and authoritative texts on Mohammedan law, it is more than clear that the mutawalli does not have a general power to assign or transfer his office to another person, unless he is given such powers by the wakf deed itself. In the instant case, the wakf deed does not give the mutawalli any such power to select another person as the future mutawalli on his demise, by creating a trust deed or any other instrument to that effect. In the absence of such an authorization, the transfer of the office of mutawalli by Syed Badruddin Ahmed by way of a trust deed in favour of his wife, clearly went beyond the purview of his powers and the settled principles of Mohammedan law. The succession of the office of mutawalli should be in accordance with the intention of the wakif who created the wakf, and the same cannot be subverted through any other document contrary to the intention of the wakif. Here, given that Nazira Khatoon was the wife of the last mutawalli and not a direct descendant in the family, she would not have been entitled to the mutawalliship even if the wakf deed were to be interpreted broadly to include female descendants. Thus, the creation of the trust deed to alter the succession of the office of mutawalli in her favour, is tantamount to changing the terms of the original wakf deed. It is a subversion of the intent underlying the wakf deed and is illegal, as it goes beyond the powers vested with the mutawalli. The claim of late Nazira Khatoon to the mutawalliship of the said wakf estate is therefore unsustainable.Different translations of the wakf deed have been produced before us. While the translation adduced by the Appellant at Annexure P-1 interprets ?putro poutradi krome? to mean ?through successive generations or successors?, the translation adduced by the Respondent No.1 at Annexure R¬1 interprets it as ?sons and grandsons in succession?.We are inclined to agree with the interpretation put forth by the learned counsel for the Respondent(s). Admittedly, the official translation before this Court indicates that the term ?putro poutradi krome? means future generations or descendants. This is also supported by the dictionaries cited by the Counsel for the Appellant. However, it is to be noted that the same source also shows that the word ?putro? means son and grandson. In reading and interpreting the term ?putro poutradi krome?, the meaning of the individual words must also be considered and accounted for. A combined reading of these terms lends support to the view that ?putro poutradi krome? means son and grandson, generation after generation, and therefore does not include any female descendants.13. Following this meaning, it becomes clear that the original wakf deed did not envisage female descendants to fall within the purview of these words and hold the office of mutawalli. Thus, Nazira Khatoon or her daughters (including the Appellant herein) cannot stake any claim to the mutawalliship of the wakf estate. Instead, being the nephew of the last mutawalli, Respondent No. 1 herein is a male lineal descendant of the original mutawalli, and is therefore entitled to hold the office of mutawalli as per the wakf deed. While it is not in dispute that women can also hold the office of mutawalli under Mohammedan law, on the facts at hand, it is clear that the wakif intended to create the mutawalliship only in favour of male descendants, from generation toMohammedan law, when a wakf is created, all rights in the property pass from the wakif or dedicator to the God. The mutawalli is only a manager of such property and does not have any rights init is well-settled that a mutawalli only acts in a managerial capacity for the wakf. As regards his power to transfer his office to another person, he cannot undertake such a transfer, unless such a power is expressly given to him by the wakif in the wakf deed.