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 comutwalli, 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 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-EF]
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 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 (21 st 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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