Case: MD.ABRAR Vs. MEGHALAYA BOARD OF WAKF

grants. In the case of documents relating to private property, the words have now become words of limitation and as such they indicate absolute estate and in the case of absolute estate agnate heirs being residuaries exclude cognates under the Mahomedan law. But where these words occur in documents laying down the line of devolution for a religious office, such as the managership of a wakf, the above said consequence does not necessarily follow. There the words generation after generation must be taken literally and we do not see any reason why at least in the case of descendants of a person claiming through females they should be excluded. It has been contended relying on Abdul Ganne Kasam v. Hussen Miya Rahimtula and Shah Ahmud Hossain v. Shah Mohiooddeen Ahmad that descendants through females should not be regarded as members of the family and must be regarded as strangers. The word family itself is ambiguous. In this decision it is used in the sense of agnate heirs. In a larger sense a mans descendants through females are equally members of his family and certainly under Muhammadan Law are heirs though they are remote heirs and they can come in by the use of the appropriate words, for example, by the use of the word Ahfad, as in Shekh Karimodin v. Nawab Mir Sayad Alam Khan. The passages relied on in the various text books no more than summarise the effect of these decisions and do not help us further. The word Naslan certainly includes all descendants: vide Tyabjis Muhammadan Law, S. 508 and Naslan bad Naslan indicates all descendants; That is how it was translated in Ali Muqtada Khan v. Abdul Hamid Khan. On the whole therefore we come to the conclusion that the words batnam bad batnam in Ex. D and the words naslan bad naslan in Ex. M are not intended to exclude the descendants through females. Baillies Mahomedan Law, page 579 does not indicate a contrary view. We have therefore to consider the relative merits of all the claimants including the descendants through females. (emphasis supplied) Accordingly, the High Court in Syed Mahomed Ghouse (supra) confirmed the subordinate courts finding that the son of a female descendant would be qualified to manage the waqf property. 12. From the above discussion, we may conclude that it cannot be said as a rule of law that cognatic heirs of the waqif have no right to succeed to mutawalli-ship. As Mulla notes on page 90 and as observed in Fyzees Outlines of Muhammedan Law (5 th edn., 2008, Prof. Tahir Mahmood ed., page 339), daughters children and their descendants are also included as descendants of the deceased under Muslim law, though they are considered a more distant class of heirs than agnatic heirs. Rather, as we have found in our earlier discussion on the issue of succession to joint mutawalli-ship mentioned supra, it is the interpretation of the waqf deed which is germane in each case. We may also refer, in this regard, to the recent decision of a two-Judge Bench of this Court, comprising of myself and Rastogi J., where we have held that in order to establish a claim of hereditary succession to mutawalli-ship, the intention of the waqif, as manifested either through the directions given in the waqf deed or the creation of a custom, is of paramount importance (See Aliyathammuda Beethathebiyyappura Pookoya & Ors. v. Pattakal Cheriyakoya & Ors., C.A. No. 9586/2010, judgment dated August 1, 2019). We are of the considered opinion that this principle also applies in determining which class of heirs is included or excluded from mutawalli¬ship. Therefore it has to be seen whether in the present case, having regard to the terms of the waqf deed, the waqif intended to exclude his descendants through the female line from mutawalli¬ship of the waqf. In the present case, Kammu Mia was the husband of the daughter of the waqif Haji Elahi Baksh. Therefore Kammu Mias descendants would naturally be Haji Elahi Bakshs descendants through the female line, and the waqif must have been aware of this while drafting the waqf deed. If the waqif had intended to exclude his descendants through the female line from succession to mutawalli¬ship, he would have expressly stated that after the death of either the original joint mutawallis, only Md. Shafis descendants would be eligible to succeed to mutawalli-ship. However, the waqf deed dated 9.11.1936 clearly provides that either of the surviving mutawallis may nominate a successor as he thinks fit and that if mutawalli does not nominate a successor, the senior most member amongst the lineal descendants of either Md. Shafi or Kammu Mia would be competent to hold mutawalli-ship, without any preference given to Md. Shafis descendants. Hence it is clear that the waqif not only included the direct descendants of his son but also his descendants through the female line, which includes Kammu Mias daughters descendants, as part of his family line. The High Courts finding that the waqif intended that the mutawalli-ship should devolve upon Kammu Mias descendants only after the waqifs direct lineal descendants are exhausted is patently incorrect in as much as the waqf deed does not contain any such stipulation. 13. However, having regard to the fact that there may be several such descendants in the female line who are vying for mutawalli-ship, we do not wish to make a specific finding in regard to whether the appellant is entitled to the said office. Section 63 of the 1995 Act is useful to refer to at this juncture: 63. Power to appoint mutawallis in certain cases.— When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.

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

Explanation:
1[ds]Asraful Alam Shani (supra) was a case similar to the present case wherein two persons were appointed as joint mutawallis, and after the death of one, the surviving mutawalli claimed to be the sole mutawalli. The High Court upon consideration of the terms of the waqf deed in Asraful Alam Shani found that the intention of the waqifs was that upon the death of any one of them, the survivor shall be the sole mutawalli. Any person nominated by either of the mutawallis as their successor during their lifetime could only assume the office when both joint mutawallis died9. From the above discussion it can be said that ordinarily, upon the death of one of the joint mutawallis, the surviving mutawalli becomes the sole mutawalli of the waqf property. In a case where there are more than two joint mutawallis, after the death of one of the mutawallis, only the remaining mutawallis would be entitled to continue as joint mutawallis. Any successor nominated by the deceased mutawalli can only assume office after the death of the original mutawallis, unless there is an express or implied direction in the waqfnama to the contraryHence in the present case, it has to be seen what scheme of succession was laid down in the waqf deed dated 9.11.1936 (relevant portion quoted supra). Upon perusal of the terms of the waqf deed, we are of the considered opinion that the waqif intended that after the death of any of the original joint mutawallis, the survivor was required to nominate a person from the waqifs family line to succeed the deceasedIt is crucial to note that Clause 2 of the waqf deed dated 9.11.1936 provides that upon the death of either of the joint mutawallis, the survivor shall be the sole mutawalli for the time being. (emphasis supplied) This differentiates the waqf deed from the present waqf deed in Asraful Alam Shani (supra) where it was simpliciter stated that upon the death of either of the joint mutawallis, the survivor shall become the sole mutawalli. The phrasing of the waqf deed dated 9.11.1936 indicates that the waqif intended that after the death of either of the mutawallis, the survivor shall continue as the sole mutawalli only for a temporary period. In the interim, the survivor is required to nominate a competent successor to the deceased mutawalli from the waqifs family line, and thereafter, the said successor shall have the right to nominate his successor (i.e. successors successor) from the same sourceFurther, having regard to the fact that the waqf was constituted of properties belonging to Md. Haji and Kammu Mia, it can be inferred that the waqif intended that the succeeding mutawalli should be nominated from the descendants of the deceased mutawalli. It is unreasonable that the waqif would have wanted the surviving mutawalli to continue as a sole mutawalli, and administer the properties of the deceased in exclusion of the family members of the deceased mutawalli, unless the family line of the deceased mutawalli was to be exhaustedOur interpretation of the waqf deed in the above terms is supported by the order of the Assam Wakf Board dated 4.3.1973 allowing Respondent No. 2s claim to be appointed as joint mutawalli together with the deceased Kammu Mia. The Wakf Board strongly condemned the deceased Kammu Mia for continuing as sole mutawalli and observed that this indicated a desire on his part to misappropriate the income of the waqf for his own family, to the exclusion of the other descendants of the waqifThe aforesaid order of the Wakf Board has not been challenged by the respondents in the present appeal at any point of time. We find it difficult to understand how it can lie to Respondent No. 2 to seek appointment as joint mutawalli after his fathers death as his fathers heir and deny the same right to the descendants of his erstwhile co¬ mutawalli Kammu MiaImportantly, we find from a careful perusal of the decision, that the High Court in Md. Eshaque (supra) did not rule as a matter of law that mutawalli-ship can never devolve upon the descendants through the female line. In the same decision, the High Court noted that in an earlier decision of the Bombay High Court in Sheikh Karimodin v. Nawab Mir Sayad Alam Khan, 10 Bom. 119., it was held that the expression ahfad, if used in the waqf deed, would be wide enough to cover descendants of the daughter as well. The clauses of the waqf deed in Md. Eshaque also expressly indicated that preference was to be given to the male issue over the female issue12. From the above discussion, we may conclude that it cannot be said as a rule of law that cognatic heirs of the waqif have no right to succeed to mutawalli-ship. As Mulla notes on page 90 and as observed in Fyzees Outlines of Muhammedan Law (5 th edn., 2008, Prof. Tahir Mahmood ed., page 339), daughters children and their descendants are also included as descendants of the deceased under Muslim law, though they are considered a more distant class of heirs than agnatic heirs. Rather, as we have found in our earlier discussion on the issue of succession to joint mutawalli-ship mentioned supra, it is the interpretation of the waqf deed which is germane in each caseWe may also refer, in this regard, to the recent decision of a two-Judge Bench of this Court, comprising of myself and Rastogi J., where we have held that in order to establish a claim of hereditary succession to mutawalli-ship, the intention of the waqif, as manifested either through the directions given in the waqf deed or the creation of a custom, is of paramount importance (See Aliyathammuda Beethathebiyyappura Pookoya & Ors. v. Pattakal Cheriyakoya & Ors., C.A. No. 9586/2010, judgment dated August 1, 2019). We are of the considered opinion that this principle also applies in determining which class of heirs is included or excluded from mutawalli¬shipTherefore it has to be seen whether in the present case, having regard to the terms of the waqf deed, the waqif intended to exclude his descendants through the female line from mutawalli¬ship of the waqf. In the present case, Kammu Mia was the husband of the daughter of the waqif Haji Elahi Baksh. Therefore Kammu Mias descendants would naturally be Haji Elahi Bakshs descendants through the female line, and the waqif must have been aware of this while drafting the waqf deed. If the waqif had intended to exclude his descendants through the female line from succession to mutawalli¬ship, he would have expressly stated that after the death of either the original joint mutawallis, only Md. Shafis descendants would be eligible to succeed to mutawalli-ship. However, the waqf deed dated 9.11.1936 clearly provides that either of the surviving mutawallis may nominate a successor as he thinks fit and that if mutawalli does not nominate a successor, the senior most member amongst the lineal descendants of either Md. Shafi or Kammu Mia would be competent to hold mutawalli-ship, without any preference given to Md. Shafis descendantsHence it is clear that the waqif not only included the direct descendants of his son but also his descendants through the female line, which includes Kammu Mias daughters descendants, as part of his family line. The High Courts finding that the waqif intended that the mutawalli-ship should devolve upon Kammu Mias descendants only after the waqifs direct lineal descendants are exhausted is patently incorrect in as much as the waqf deed does not contain any such stipulation13. However, having regard to the fact that there may be several such descendants in the female line who are vying for mutawalli-ship, we do not wish to make a specific finding in regard to whether the appellant is entitled to the said office.