MD. ABRAR versus MEGHALAYA BOARD OF WAKF & ANR.
[2019] 12 S.C.R. 721, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
721
MD. ABRAR
v.
MEGHALAYA BOARD OF WAKF & ANR.
(Civil Appeal No. 4025 of  2010)
 SEPTEMBER 26, 2019
[N. V. RAMANA, MOHAN M. SHANTANAGOUDAR
AND AJAY RASTOGI, JJ.]
Waqf:
Joint Mutwalliship – Succession – Held: Ordinarily upon
death of one of the joint mutwallis, the surviving mutwalli/muttwallis
are entitled to continue – Any successor nominated by the deceased
mutwalli can assume office only after the death of original
mutwalli/mutwallis, unless there is an express or implied direction
in the waqfnama to the contrary – Terms of the waqf deed in the
present case show that the waqif intended that after the death of
any of the original joint mutwallis, the survivor mutwalli was
required to nominate a person from the waqif’s family line to
succeed the deceased mutwalli – Since the surviving mutwalli has
shown disinclination to nominate a successor to the deceased co-
mutwalli, Waqf Board is directed to appoint a competent person
from amongst co-Mutwalli descendants to succeed to joint
mutwalliship.
Mutwalliship – Succession – Right of cognatic heirs of waqif
– Held: For hereditary succession to mutwalliship cognatic heirs
cannot be excluded as they are also included as descendants of
the deceased under muslim law, though considered a more distant
class of heirs than agnatic heirs – In order to establish claim for
such succession, 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 – In the facts of the present case it is
evident that the waqif did not intend to exclude the cognatic heirs
to succeed to mutwalliship.
Allowing the appeal, the Court
HELD: 1.1 Ordinarily, upon the death of one of the joint
mutawallis, the surviving mutawalli becomes the sole mutawalli
   [2019] 12 S.C.R. 721
721
A
B
C
D
E
F
G
H
722
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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 contrary. [Para 9] [731-A-B]
1.2 Upon perusal of the terms of the waqf deed in the
present case, it is clear 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 waqif’s family line to
succeed the deceased mutwalli. [Para 9] [731-C]
1.3 The phrasing of the waqf deed in the present case
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 waqif’s family line, and thereafter, the said
successor shall have the right to nominate his successor (i.e.
successor’s successor) from the same source. [Para 9] [731-E-
F]
1.4 Having regard to the fact that the waqf was constituted
of properties belonging to both the Mutwallis, 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 exhausted. [Para 9] [731-G-H]
1.5 The 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. 2’s claim to be appointed as
joint mutawalli together with the erstwhile co-Mutwalli. The Wakf
Board had strongly condemned the erstwhile co-Mutwalli for
continuing as sole mutwalli 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
A
B
C
D
E
F
G
H
723
waqif. The aforesaid order of the Wakf Board was not  challenged
by the respondents in the present appeal at any point of time.
Respondent No. 2 after seeking appointment as joint mutwalli
after his father’s death as his father’s heir cannot deny the same
right to the descendants of his erstwhile co-mutawalli. [Para 9]
[732-A-C]
Md. Eshaque v. Md. Amin AIR 1948 Cal 312 ; Haji
Abdul Razaq v. Sheikh Ali Baksh (1947-48) 75 IA 172;
Commissioner of Wakfs v. Asraful Alam Shani and Anr.
AIR 1975 Cal 162 –  referred to.
Principles of Mahomedan Law by Mulla (21st edn.,
2017, Prof. Iqbal Ali Khan ed.) – referred to.
2.1 It cannot be said as a rule of law that cognatic heirs of
the waqif have no right to succeed to mutawalli-ship. Daughter’s
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. It is the
interpretation of the waqf deed which is germane in each case.
[Para 12] [735-D-F]
2.2 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.This principle also applies
in determining which class of heirs is included or excluded from
mutawalli-ship. [Para 12] [735-G-H]
Aliyathammuda Beethathebiyyappura Pookoya & Ors.
v. Pattakal Cheriyakoya & Ors. 2019 (10 ) SCALE
263 – relied
on.
2.3 In the present case, co-Mutualli was the husband of
the daughter of the waqif. Therefore co-Mutualli’s descendants
would naturally be waqif’s 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 first Mutualli’s descendants would
be eligible to succeed to mutawalli-ship. However, the waqf deed
MD. ABRAR v. MEGHALAYA BOARD OF WAKF & ANR.
A
B
C
D
E
F
G
H
724
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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 first Mutualli’s
or co-Mutualli would be competent to hold mutawalli-ship,
without any preference given to first Mutualli’s descendants.
[Para 12] [736-A-D]
2.4 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 co-Mutualli’s daughter’s
descendants, as part of his ‘family line.’ The High Court’s finding
that the waqif intended that the mutawalli-ship should devolve
upon co-Mutualli’s descendants only after the waqif’s direct lineal
descendants are exhausted is patently incorrect in as much as
the waqf deed does not contain any such stipulation. [Para 12]
[736-E]
2.5 Since Respondent No. 2 (surviving mutwalli) has
shown a disinclination to nominate a successor to the deceased
co-Mutwalli, as provided for under the terms of the waqf deed,
Respondent No. 1 (Waqf Board) is directed to appoint a
competent person from amongst co-Mutwalli descendants, as it
thinks fit, to succeed to joint mutawalli-ship. The said successor
shall thereafter have the right to nominate his successor, per
Clause 3 of the waqf deed. It is directed that the said successor
shall, in the event of the death of Respondent No.
2, nominate
a successor from Respondent No. 2’s family line, which includes
descendants through the female line, so as to avoid any further
dispute in this regard. [Para 13] [737-A-B]
Sheikh Karimodin v. Nawab Mir Sayad Alam Khan 10
Bom. 119 ; Wares Ali v.Sheikh Shamsuddin (1936) 63
Cal. L.J. 573 ; Syed Mahomed Ghouse v. Sayabarin
Sahib (deceased) AIR 1935 Mad 638 – referred to.
Fyzee’s Outlines of Muhammedan Law (5th edn., 2008,
Prof. Tahir  Mahmooded., page 339) –  referred to.
Case Law Reference
AIR 1948 Cal 312
referred to
Para 4
(1947-48) 75 IA 172
referred to
Para 8
A
B
C
D
E
F
G
H
725
AIR 1975 Cal 162
referred to
Para 8
10 Bom. 119
referred to
Para 10
(1936) 63 Cal. L.J. 573
referred to
Para 11
AIR 1935 Mad 638
referred to
Para 11
2019 (10 ) SCALE 263
relied on
Para 12
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4025
of 2010.
From the Judgment and Order dated 28.01.2009 of the High
Court of Gauhati (High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram and Arunachal Pradesh in C.R.(P) No. 15(SH) 2008.
Mukesh K. Giri and Ankit Khera, Advs. for the Appellant.
Shakil Ahmed Syed, Mohd. Parvez Dabas, Uzmi Jameel Hussain,
Syed Ahmad Daanish and Avijit Bhattacharjee, Advs. for the
Respondents.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
1. This appeal arises out of judgment dated 28.01.2009 of the
Shillong Bench of the Gauhati High Court. The High Court by the
impugned judgment dismissed the appellant’s revision petition and
confirmed the order of the Wakf Tribunal dated 19.3.2008 dismissing
the appellant’s application seeking appointment as joint mutawalli, along
with Respondent No.2, of his predecessor’s waqf property.
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 settlor’s 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.
MD. ABRAR v. MEGHALAYA BOARD OF WAKF & ANR.
A
B
C
D
E
F
G
H
726
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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 Mutawalli.”
Md. 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 waqif’s 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 Mia’s 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 daughter’s 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 waqif’s family
line. His appeal against the order dated 7.2.1980 was dismissed by orders
A
B
C
D
E
F
G
H
727
of the Assistant Deputy Commissioner and Additional Deputy
Commissioner of Wakfs respectively. Further, the High Court dismissed
Md. Taiyab’s 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 Mia’s 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 Mia’s
daughter’s son, was impleaded before the Tribunal in the same matter
seeking appointment as joint mutawalli. The Tribunal rejected Md.
Zakaria’s 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 Tribunal’s 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 Tribunal’s 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 Mia’s family should be included in the management of the trust.
MD. ABRAR v. MEGHALAYA BOARD OF WAKF & ANR.
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
728
SUPREME COURT REPORTS
[2019] 12 S.C.R.
Therefore Kammu Mia’s 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 Court’s 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 appellant’s 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 founder’s female children may be considered as his
successors for mutawalli-ship, the descendants of the founder’s
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
A
B
C
D
E
F
G
H
729
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 Mia’s 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.
6. Heard both sides. 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 appellant’s 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 Mia’s
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. The two issues which arise for our
consideration in the present appeal are:
First, whether a person from the waqif’s family line could
succeed to the vacant post of joint mutawalli after the death of any of
the two original joint mutawallis?
Second, if the first issue is answered in the affirmative, whether
joint mutawalli-ship can be held by the appellant herein, though he is
Kammu Mia’s daughter’s son?
MD. ABRAR v. MEGHALAYA BOARD OF WAKF & ANR.
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
730
SUPREME COURT REPORTS
[2019] 12 S.C.R.
8. With respect to the first issue, we may refer to the following
observations of learned author Mulla in Principles of Mahomedan Law
(21st edn., 2017, Prof. Iqbal Ali Khan ed.) (for short “Mulla”) on page
253, which were relied upon by the High Court in the impugned
judgment:
“§ 205A. Succession where two are more mutawallis are
jointly appointed. Where two or more mutawallis are appointed
as joint mutawallis i.e., as joint holders of a single office, and
there is no direction, express or implied, given by the waqif and
where there is no evidence of custom supporting a usage to the
contrary, the office of mutawalli-ship held jointly will pass on the
death of one holder to the survivor or survivors…
…A, B and C are appointed joint mutawallis of a waqf. There
is no direction in the waqfnama with regard to what is to happen
if one of them were to die and there is no evidence of custom.
A dies, but before he dies he appoints X as a mutawalli to succeed
him. X cannot act as mutawalli because on the death of A, the
mutawalli-ship passes to B and C, and A has no power to appoint
X as a mutawalli.”
(emphasis supplied)
The aforementioned illustration cited by Mulla is taken from the
decision of the Privy Council in Haji Abdul Razaq v. Sheikh Ali
Baksh, (1947-48) 75 IA 172. Abdul Razaq was referred to by the
Calcutta High Court in its decision in Commissioner of Wakfs v.
Asraful Alam Shani and another, AIR 1975 Cal 162, which
was in
turn relied upon by the High Court in the impugned judgment.
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 died.
A
B
C
D
E
F
G
H
731
9. 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
contrary.
Hence 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 waqif’s family line to succeed the
deceased.
It 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 waqif’s family
line, and thereafter, the said successor shall have the right to nominate
his successor (i.e. successor’s successor) from the same source.
Further, 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 exhausted.
MD. ABRAR v. MEGHALAYA BOARD OF WAKF & ANR.
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
732
SUPREME COURT REPORTS
[2019] 12 S.C.R.
Our 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. 2’s 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 waqif.
The 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 father’s death as his father’s
heir and deny the same right to the descendants of his erstwhile co-
mutawalli Kammu Mia.
10. Therefore, what remains to be decided is whether the
appellant can be construed as part of the ‘family line’ of the waqif Haji
Elahi Baksh as required under Clause 2 of the waqf deed.  It is relevant
to note that the issue for consideration before us is not whether the
waqif’s daughter or a female descendant can be the mutawalli, but
whether the offspring of the daughter can be considered for mutawalli-
ship. The High Court in the impugned judgment negatived this contention
in reliance upon the decision of the Calcutta High Court in Md.
Eshaque (supra). In Md. Eshaque, the
waqif provided for the
devolution of mutawalli-ship in the waqf deed as follows (relevant
portion):
“Clause (a). —…the said office stall devolve till the passing of
ages (i.e. for ever) and repetition of months, as God the merciful
wills upon the offspring of my son (ba farzandani—farzandam)
from generation to generation (Naslan baad naslin) womb after
womb (batnam baad batnin)…
Clause (b).—But, whoever from among the male issue of my
son and of the children (off spring) of my son, is learned and
God fearing, and virtuous, and adorned with the ornament of truth
and purity, and embellished with the qualities of fidelity and
honesty and celebrated for, and qualified with laudable qualities
A
B
C
D
E
F
G
H
733
and pleasing manners, shall be appointed to the office of the
aforesaid ‘tawliat’.
Clause (d).—And, if from among the children of the Mutwalli,
several persons are found to adorned and qualified with the
aforesaid attributes, then the person who is senior-most in age
among them be entitled to the ‘tawliat’, and, supposing they be
equal in age, then one of them shall be entitled according to the
advice of religions Musalmans and sober (i.e. pious) learned men,
and so long as there exist male issue, the said office shall not be
transferred to female issue.”
Clause (e).—”If by Divine decree the male issues become
extinct, then it shall be transferred to the females, with the same
aforesaid conditions as are applicable to the class of males and
with the same…”
(emphasis supplied)
In that case, the original mutawalli’s son died without any issue.
The question which arose for consideration was whether the son of
the mutawalli’s widowed daughter was competent to succeed as
mutawalli. The High Court, upon extensive consideration of the opinions
of Mohammedan jurists on this point, came to the conclusion that the
Persian word ‘farzand’ used in the waqf deed (the Arabic synonym of
which is ‘aulad’) is legally understood to include both sons and daughters
in the male line, but exclude any descendants, of whatever gender, in
the female line.
Importantly, 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 issue.
MD. ABRAR v. MEGHALAYA BOARD OF WAKF & ANR.
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
734
SUPREME COURT REPORTS
[2019] 12 S.C.R.
11. In an earlier decision of the Calcutta High Court in Wares
Ali v. Sheikh Shamsuddin, (1936) 63 Cal. L.J. 573, the High Court
found that since the waqif herself had appointed the son of a daughter
as mutawalli, the expression ‘legal heirs’ in the waqfnama must be taken
to include lineal descendants in both the male and female line. In Syed
Mahomed Ghouse v. Sayabarin Sahib (deceased), AIR 1935 Mad
638, similar terms ‘batnam bad batnam’ and ‘naslan bad naslan’ were
used in the waqf deed with regard to succession to mutawalli-ship. The
Madras High Court held, referring to the decision in Sheikh Karimodin
(supra) as follows:
“The primary meaning of the words ‘Batnam bad batnam’
seems to be generation after generation: see Wilson’s Glossary
and Durga Prasad’s Arabic dictionary. It is contended by Mr.
Rangachari, also by the Advocate for the sixth defendant, that
these words exclude the cognate descendants. It seems to be
so in the case of private 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 man’s 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.
A
B
C
D
E
F
G
H
735
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
Tyabji’s 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. Baillie’s
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 court’s 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 Fyzee’s Outlines of Muhammedan Law (5th edn., 2008,
Prof. Tahir Mahmood ed., page 339), daughter’s 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.
MD. ABRAR v. MEGHALAYA BOARD OF WAKF & ANR.
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
736
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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 Mia’s descendants
would naturally be Haji Elahi Baksh’s 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. Shafi’s 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. Shafi’s 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 Mia’s daughter’s descendants, as part of his
‘family line.’ The High Court’s finding that the waqif intended that the
mutawalli-ship should
devolve upon Kammu Mia’s descendants only
after the waqif’s 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.”
A
B
C
D
E
F
G
H
737
In the present case, since Respondent No. 2 has shown a
disinclination to nominate a successor to the deceased Kammu Mia,
as provided for under the terms of the waqf deed, we direct Respondent
No. 1 to appoint a competent person from amongst the said Kammu
Mia’s descendants, as it thinks fit, to succeed to joint mutawalli-ship.
This is provided that the said successor shall thereafter have the right
to nominate his successor, per Clause 3 of the waqf deed. We also
direct that the said successor shall, in the event of the death of
Respondent No. 2, nominate a successor from Respondent No. 2’s
family line, which includes descendants through the female line, so as
to avoid any further dispute in this regard.
14. The appeal is allowed in the above terms, and the impugned
judgment is set aside.
Kalpana K. Tripathy
Appeal allowed.
MD. ABRAR v. MEGHALAYA BOARD OF WAKF & ANR.
[MOHAN M. SHANTANAGOUDAR, J.]