Case: MD.ABRAR Vs. MEGHALAYA BOARD OF WAKF

2. The facts giving rise to this appeal are as follows: One Haji Elahi Baksh (waqif), who was resident of Shillong, executed a registered waqf deed dated 9.11.1936 dedicating properties belonging to himself, his son Md. Shafi and his son-in-law cum nephew Haji Kammu Mia to the waqf. The relevant clauses of the waqf deed are reproduced as follows:1. The settlors son Md Shafi and son in law Kammu Mia, son of late S.K. Gajnu, shall be joint Mutawallis during their lifetime.      2. On the death of either of the joint mutawallis, the survivor shall be the sole Mutawalli for the time being and shall have power to nominate his successor from the family line of the settlor.      3. Each successive Mutawallis thereafter shall have the right to nominate his successor from the same source. 5. Should a Mutawalli die without nominating a successor, the senior most member among the lineal descendants of the said Md Shafi and Kammu Mia, if otherwise competent shall be entitled to hold the office of MutawalliMd. Shafi died on 20.12.1960, whereupon the surviving mutawalli among the joint mutawallis, namely Haji Kammu Mia became the sole mutawalli. However Kammu Mia did not appoint the successor to the deceased Md. Shafi. Hence Respondent No. 2 in the present appeal, Md. Sulaiman, who is the son of the late Md. Shafi, approached the Assam Wakf Board, which had territorial jurisdiction at that time, seeking appointment as joint mutawalli with Kammu Mia.      The Assam Wakf Board, by order dated 4.3.1973, found that under Clause 2 of the waqf deed dated 9.11.1936 (supra), the surviving mutawalli from amongst the joint mutawallis was required to nominate the successor of the deceased mutawalli from the waqifs family line. Since the surviving mutawalli Kammu Mia had failed to do so, the Wakf Board, taking note of the fact that Respondent No. 2 was the son of the deceased mutawalli, appointed him as joint mutawalli along with Kammu Mia. It is relevant to note that this order was not challenged by any of the parties herein.      Thereafter, Respondent No. 2 Md. Sulaiman acted as the joint mutawalli along with Kammu Mia, till Kammu Mias death on 2.2.1980, upon which Md. Sulaiman became the sole mutawalli. However, this time it was Md. Sulaiman who failed to nominate a successor to the deceased Kammu Mia. This was even though Kammu Mia during his lifetime; by deed dated 19.2.1973 had nominated his daughters son Md. Taiyab as his successor, which fact was also communicated to the Assam Wakf Board.      In the meantime a separate Wakf Board, i.e. Respondent No.1 was constituted for the State of Meghalaya. Respondent No. 1 by order dated 7.2.1980 recognized Md. Sulaiman as the sole mutawalli. Aggrieved by the same, Md. Taiyab approached Respondent No. 1 seeking appointment as the sole mutawalli; however his application was dismissed on the ground that he does not belong to the waqifs family line. His appeal against the order dated 7.2.1980 was dismissed by orders of the Assistant Deputy Commissioner and Additional Deputy Commissioner of Wakfs respectively. Further, the High Court dismissed Md. Taiyabs suit against Respondent No. 1 due to lack of notice to the Wakf Board as required under Section 56 of the Wakfs Act, 1954.      3. Md. Taiyab again served notice on Respondent No. 1 in 2002, after coming into force of the Waqfs Act, 1995 (1995 Act). The Wakf Tribunal by order dated 19.7.2006 relied upon Section 25 of the Indian Succession Act, 1925 to interpret the term family line of the settlor as stated in the waqf deed. Section 25 of the Indian Succession Act provides as follows:25. Lineal consanguinity.—(1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson, great¬grandson and so downwards in direct descending line…Hence the Wakf Tribunal concluded that since Md. Taiyab was Kammu Mias descendant through the female line, he could not be regarded as a direct lineal descendant, and hence was not eligible for appointment as mutawalli.      Additionally, one Md. Zakaria, who was also Kammu Mias daughters son, was impleaded before the Tribunal in the same matter seeking appointment as joint mutawalli. The Tribunal rejected Md. Zakarias claim as well, holding that it was the intent of the wakif that Md. Shafi and Kammu Mia would enjoy joint mutawalli-ship only during their lifetime. Such joint mutawalli-ship was to cease on the death of either of the joint mutawallis, and thereafter the surviving mutawalli and his successors would continue as the sole mutawalli.      Md. Zakaria filed a revision petition against the Tribunals order dated 19.7.2006 under Section 83(9) of the 1995 Act whereas Md. Taiyab filed a writ petition challenging the same order. The High Court by common order dated 25.7.2007 in W.P. No. 184/2006 and C.R.(P) No. 26/2006 dismissed both petitions, affirming the Tribunals findings. With respect to the issue of joint mutawalli-ship, the High Court found that the trust property included property of the deceased Kammu Mia. Hence the waqif would have definitely intended that one person from Kammu Mias family should be included in the management of the trust. Therefore Kammu Mias descendants would be entitled to be appointed as a joint mutawalli along with the descendants of Md. Shafi.      However, the Court simultaneously observed that while Part IV of the Indian Succession Act excludes applicability to Muslim persons, in the absence of any definition of lineal descendants in the 1995 Act or any authoritative pronouncement of Mohammedan law in this regard, the definition under Section 25 of the Indian Succession Act could be taken into consideration for interpreting the meaning of the term family line. Since Kammu Mia was not survived by any son, his descendants through the female line could not be considered for the office of joint mutawalli-ship. Further, that allowing the same as a matter of law would lead to additional expansion in the list of claimants which would not be in the interest of administration of the trust property. This Court by order dated 7.9.2007 in SLP (C) No. 15494 of 2007 and by order dated 13.12.2007 in SLP (C) Nos. 24316-24318 of 2007 declined to grant leave to appeal to Md. Zakaria and Respondent No. 1 Wakf Board respectively, though it observed that Question of law, if any, is left open.      4. In view of this Courts observation, the appellant herein, Md. Abrar, who is the brother of Md. Zakaria and also a descendant of Kammu Mia through the female line, approached the Wakf Tribunal seeking appointment as a joint mutawalli. The Tribunal by order dated 19.3.2008 dismissed the appellants application on the ground that the High Court order dated 25.7.2007 had attained finality and hence the question of mutawalli-ship has been decided. The appellant filed a revision petition before the High Court challenging the Tribunal order dated 19.3.2008.      The High Court, in substantial reliance upon the decision of the Calcutta High Court in Md. Eshaque v. Md. Amin, AIR 1948 Cal 312 ,  held that while the founders female children may be considered as his successors for mutawalli-ship, the descendants of the founders daughters would not be considered as lineal descendants under Mohammedan law, unless there is a special term in the wakf deed indicating an intention to the contrary (emphasis supplied). Hence the appellant was excluded from consideration for mutawalli¬ship.      5. The High Court further found that there was no provision in the waqf deed dated 9.11.1936 for the appointment of another joint mutawalli by the surviving mutawalli after the death of one of the original joint mutawallis. The concept of joint mutawalli-ship would cease to have any effect after the death of any of the original joint mutawallis. The surviving mutawalli is only empowered to nominate his successor. Further, that once a daughter gets married, she becomes a member of other families and her children cannot be the direct lineal descendants of her father. Hence, it is only after the direct lineal descendants of the waqif are exhausted that Kammu Mias descendants can be considered for appointment as mutawallis. The High Court also found that there was no custom or usage to the contrary supporting the appointment of joint mutawallis after the death of Md. Shafi and Kammu Mia. Hence this appeal.It is relevant to note that Respondent No. 2 Md. Sulaiman, the present mutawalli of the waqf, has not appeared before this Court contesting the appellants case. Respondent No. 1, Meghalaya Wakf Board, is agreeable to appoint the appellant as a joint mutawalli along with Respondent No. 2. However, Respondent No. 1 has only sought a clarification in so far as the common order of the High Court dated 25.7.2007, in W.P. No. 184/2006 and C.R.(P) No. 26/2006, had found that the waqif had intended that Kammu Mias descendants should continue as one of the joint mutawallis. Whereas the High Court in the impugned judgment made a contradictory finding to the effect that the waqf deed dated 9.11.1936 provided for the cessation of joint mutawalli-ship upon the death of either of the original joint mutawallis.      7. Since this Court in SLP (C) No. 15494 of 2007 and SLP (C) Nos. 24316-24318 of 2007 has declined leave to appeal against the High Court order dated 25.7.2007, we will not be interfering with the findings therein, but will limit our conclusions to the questions of law and fact raised in the present appeal.

Reasoning: 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.