Wakf – Appointment of Mutawalli – A wakf was created in respect of certain properties by a registered deed of wakf – This deed appointed one person as Mutawalli of the wakf estates – Deed 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 eldest son was appointed as the next Mutawalli – Eldest son of the original Mutawalli had six sons and nine daughters – After the death of the eldest son of the original Mutawalli, ‘SBA’ was authorised to act as Mutawalli – ‘SBA’ was the son of the eldest son of the original Mutawalli – ‘SBA’ did not have any male issue – Thereafter, ‘SBA’ executed a trust deed and appointed his wife ‘NK’ as the next Mutawalli after his death – After the death of ‘SBA’, ‘NK’ applied to the Board of wakfs for appointment as Mutawalli – Her application was allowed by the Commissioner of wakfs – Respondent No.1, grandson of the eldest son of the original Mutawalli and nephew of the last Mutawalli (‘SBA’) objected her appointed and alleged that her appointment went against the original wakf deed – Held: In light of the pronouncements of the Supreme Court and High Court Judgments and also authoritative texts on Mohammedan law, it is 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 did 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 ‘SBA’ 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 – Also, reading and interpreting the term ‘putro poutradi krome’ lends support to the view that it means son and grandson, generation after generation and therefore does not include any female descendants – Here, given that ‘NK’ was the wife of the last Mutawalli and not direct descendent in the family, she was not entitled to the Mutawalli – 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.
Dismissing the appeal, the Court
HELD: Whether a mutawalli has the right to transfer his office to another person, as was done by the last mutawalli, ‘SBA’ through the creation of the trust deed.
1. In light of the pronouncements of the Supreme Court and the High Court Judgments 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 ‘SBA’ 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. [Para 10] [719-C-D]
2. 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 ‘NK’ 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 ‘NK’ to the mutawalliship of the said wakf estate is therefore unsustainable. [Para 10] [719-E-F]
Whether the daughters of the last mutawalli and ‘NK’, including the Appellant herein, would qualify to be the mutawalli under the express terms of the wakf deed.
3. 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 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. 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, ‘NK’ 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. [Paras 12 and 13] [720-C-F]
Ahmed G.H. Ariff and others v. Commissioner of Wealth Tax, Calcutta (1969) 2 SCC 471 – relied on.
Badagara Jumayath Palli Dharas Committee v.
Peedikayalakath Ummerkutty Haji AIR 2002 Ker
56 ; Abdul Latheef v. K.P. Abdurahiman (2014) 1 KLJ
329 – affirmed.
Mulla’s Principles of Mohammedan Law (21 st edn., 2017) at page 298 – referred to.
Asaf A.A. Fyzee, Outlines of Muhammadan Law (5 th edn., Tahir Mahmood) at page 249 – 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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