Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4025 OF 2010
Md. Abrar …Appellant
Versus
Meghalaya Board of Wakf & Anr. …Respondents
J U D G M E N T
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.
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2019.09.26
18:06:41 IST
Reason:
2. The facts giving rise to this appeal are as follows: One Haji Elahi
Baksh (‘waqif’), who was resident of Shillong, executed a registered
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waqf deed dated 9.11.1936 dedicating properties belonging to himself,
his son Md. Shafi and his soninlaw 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.
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.
3
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
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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 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 greatgrandfather, and so
upwards in the direct ascending line, or between a man and
his son, grandson, greatgrandson and so downwards in
direct descending line…”
5
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 mutawalliship only
during their lifetime. Such joint mutawalliship 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 mutawalliship, 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
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management of the trust. 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 mutawalliship. 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
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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 mutawalliship 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 v. , AIR 1948 Cal 312,
Md. Eshaque Md. Amin
held that while the founder’s female children may be considered as his
successors for mutawalliship, 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 mutawalliship.
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 mutawalliship would
cease to have any effect after the death of any of the original joint
mutawallis. The surviving mutawalli is only empowered to nominate
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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 mutawalliship upon the death of either of the
original joint mutawallis.
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7.
Since this Court in SLP (C) No. 15494 of 2007 and SLP (C) Nos.
2431624318 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 mutawalliship can be held by the appellant herein, though he is
Kammu Mia’s daughter’s son?
8.
With respect to the first issue, we may refer to the following
observations of learned author Mulla in Principles of Mahomedan Law
st
(21 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:
“S
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…
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…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 mutawalliship 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
, (194748) 75 IA 172. was referred to by the
Baksh Abdul Razaq
Calcutta High Court in its decision in Commissioner of Wakfs v.
, AIR 1975 Cal 162, which was in
Asraful Alam Shani and another
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 found that the intention of the waqifs
Asraful Alam Shani
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.
9.
From the above discussion it can be said that ordinarily, upon
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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 (supra) where it was
Asraful Alam Shani
simpliciter stated that upon the death of either of the joint mutawallis,
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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.
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
13
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
(supra). In , the waqif provided for the
Md. Eshaque Md. Eshaque
devolution of mutawalliship in the waqf deed as follows (relevant
portion):
“Clause (a). —…the said office stall devolve till the passing of
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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 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 seniormost 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
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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 mutawalliship 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 v.
Sheikh Karimodin
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.
11.
In an earlier decision of the Calcutta High Court in Wares Ali v.
, (1936) 63 Cal. L.J. 573, the High Court found
Sheikh Shamsuddin
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
(deceased), AIR 1935
Syed Mahomed Ghouse v. Sayabarin Sahib
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
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(supra) as follows:
Karimodin
“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 .
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 v. .
Ali Muqtada Khan 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,
17
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 (supra)
Syed Mahomed Ghouse
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 mutawalliship. As notes on page 90 and as
Mulla
th
observed in Fyzee’s Outlines of Muhammedan Law (5 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 mutawalliship 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 mutawalliship, 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
18
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 mutawalliship.
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 mutawalliship 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 mutawalliship, 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 mutawalliship. 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
mutawalliship, without any preference given to Md. Shafi’s
19
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 mutawalliship 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 mutawalliship, 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.”
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
20
Respondent No. 1 to appoint a competent person from amongst the
said Kammu Mia’s descendants, as it thinks fit, to succeed to joint
mutawalliship. 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.
..........................................J.
(N.V. Ramana)
..........................................J.
(Mohan M. Shantanagoudar)
New Delhi; .........................................J.
September 26, 2019. (Ajay Rastogi)