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

2. The brief facts giving rise to this appeal are as follows:One Syed Obaidullah Baghdadi Shah founded a khankhah, a Mohammedan institution for imparting religious doctrine and rules of life. He gradually became its first spiritual superior or sajjadanashin. One of his devotees, Abdur Rahim, created a wakf in respect of certain properties by a registered deed of wakf dated 07.02.1913 (hereinafter ‘the wakf deed?). Written in Bangla/Bengali language, this deed provided that Syed Obaidullah Baghdadi would be appointed as the sole mutawalli (hereinafter ‘original mutawalli?) of the wakf. It also provided that the office of the mutawalli would devolve to ?putro poutradi krome? of the original mutawalli.On the death of the original mutawalli, his disciple and son Syed Gyasuddin Ahmed Baghdadi (hereinafter ‘Gyasuddin Ahmed?) became the sajjadanashin and mutawalli of the wakf estate. In 1977, when Gyasuddin Ahmed died, he was survived by his wife, six sons, and nine daughters. According to his Will, his eldest son Syed Badruddin Ahmed (hereinafter ‘last mutawalli?) was authorized to act as the sajjadanashin for one of the dargahs in the wakf property. His name was also recorded as the mutawalli of the wakf estate.On 19.11.1992, Syed Badruddin Ahmed died, leaving behind his widow, Nazira Khatoon, and his daughters, one of whom is the Appellant herein. Crucially, he did not have any male issue. After his death, Nazira Khatoon applied to the Board of Wakfs to be appointed as the mutawalli of the wakf estate. Her claim was based on a trust deed dated 03.02.1984 executed by Syed Badruddin Ahmed, by which he had appointed her to be the mutawalli of the wakf estate after his death (hereinafter ‘the trust deed?).3. By order dated 30.01.1995, the Commissioner of Wakfs allowed this application and appointed Nazira Khatoon as the permanent mutawalli of the wakf estate. Her name was accordingly substituted in place of her deceased husband?s.However, a dispute ensued when Respondent No. 1 herein, who is the grandson of Gyasuddin Ahmed and nephew of the last mutawalli, filed a writ petition, objecting to the appointment of Nazira Khatoon. He alleged that her appointment went against the original wakf deed. Consequently, the High Court directed the Wakf Board to decide the application submitted by Nazira Khatoon again, after considering the objections of Respondent No. 1.Upon consideration of arguments by both the parties, the Wakf Board passed a new resolution on 14.10.1999 observing that the wakf deed only provides for a male lineal descendant to be the mutawalli of the wakf estate. It was observed that by appointing Nazira Khatoon as the mutawalli of the estate, the Board committed an error, and her appointment based on the trust deed dated 03.02.1984 was in violation of the provisions of the original wakf deed. Thus, adhering to the line of succession in the original wakf deed, the members of the Wakf Board cancelled the appointment of Nazira Khatoon as the mutawalli of the estate. Instead, Respondent No. 1 was appointed as the mutawalli, being the male lineal descendant of the original mutawalli.4. This resolution was challenged by Nazira Khatoon in a writ application, which was transferred to the Wakf Tribunal, West Bengal and numbered as Appeal No. 6 of 2005. After hearing both the parties, the Presiding Officer allowed the appeal by judgment and order dated 28.02.2006. This was done on the basis of the determination that the Wakf Board does not have the power to review its earlier decision. Thus, it was held that the order cancelling Nazira Khatoon?s initial appointment amounted to a review, and was liable to be set aside.5. Being aggrieved by this judgment and order of the Wakf Tribunal, Respondent No. 1 herein approached the High Court of Calcutta by way of a revision application under Article 227 of the Constitution of India. The High Court allowed this revision application by the impugned judgment dated 01.10.2008, holding that the original wakf deed had to be given utmost importance. The term ?putro poutradi krome? in the wakf deed was interpreted to indicate that the office of mutawalli would go to the sons and grandsons (through successive generations). In view of this, it was held that Nazira Khatoon would not qualify to be the mutawalli of the said wakf estate.Further, upon examination of judicial decisions and the role of the mutawalli in the Wakf Act, 1995, the Court concluded that a mutawalli does not have an independent authority to transfer his right in the wakf to another person by creating a separate and independent instrument like a trust deed to that effect. Given that the original wakf deed did not accord such a right of transfer to the mutawalli, it was held that the trust deed created by the last mutawalli in favour of his wife could not be given effect. Thus, Respondent No. 1 was held to be entitled to the office of the mutawalli of the wakf.

Reasoning: 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.