Case Note & Summary
The appeal arose from a dispute over the mutawalliship of a waqf property created by Haji Elahi Baksh by a registered waqf deed dated 9.11.1936. The deed appointed the waqif's son Md. Shafi and son-in-law Kammu Mia as joint mutawallis during their lifetime, with the survivor to become sole mutawalli and nominate his successor from the waqif's family line. Md. Shafi died in 1960, and the Assam Wakf Board appointed his son Md. Sulaiman (Respondent No. 2) as joint mutawalli with Kammu Mia, which was not challenged. After Kammu Mia's death in 1980, Md. Sulaiman became sole mutawalli. The appellant, Md. Abrar, who is Kammu Mia's daughter's son, sought appointment as joint mutawalli before the Wakf Tribunal, which dismissed his application on the ground that the issue had attained finality. The High Court dismissed his revision, holding that joint mutawalliship ceased after the death of the original joint mutawallis and that descendants through the female line are not lineal descendants under Mohammedan law. The Supreme Court framed two issues: whether a person from the waqif's family line could succeed to the vacant post of joint mutawalli after the death of any original joint mutawalli, and whether the appellant could hold joint mutawalliship. The Court relied on Mulla's Principles of Mahomedan Law and the Privy Council decision in Haji Abdul Razaq v. Sheikh Ali Baksh to hold that joint mutawalliship passes to the survivor on the death of one joint mutawalli, and there is no provision for appointing another joint mutawalli. On the second issue, the Court affirmed that under Mohammedan law, descendants through the female line are not lineal descendants unless the deed indicates otherwise, and the waqf deed did not contain such an intention. The Court dismissed the appeal, upholding the High Court's judgment.
Headnote
A) Waqf Law - Joint Mutawalliship - Succession - Where two or more mutawallis are appointed as joint mutawallis and there is no direction in the waqf deed or custom to the contrary, the office passes on the death of one holder to the survivor or survivors - The waqf deed dated 9.11.1936 provided for joint mutawalliship only during the lifetime of the original joint mutawallis; after the death of either, the survivor becomes sole mutawalli with power to nominate his successor - Held that joint mutawalliship ceases after death of original joint mutawallis (Paras 8-9). B) Mohammedan Law - Lineal Descendant - Definition - Under Mohammedan law, descendants through the female line are not considered lineal descendants unless the waqf deed indicates an intention to the contrary - Section 25 of the Indian Succession Act, 1925, though not applicable to Muslims, can be used for guidance - The appellant, being Kammu Mia's daughter's son, is not a lineal descendant and thus not entitled to mutawalliship - Held that the High Court correctly excluded the appellant (Paras 7-10).
Issue of Consideration
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; and if so, whether joint mutawalliship can be held by the appellant, who is Kammu Mia's daughter's son.
Final Decision
The Supreme Court dismissed the appeal, holding that joint mutawalliship ceases on the death of the original joint mutawallis and that the appellant, being a descendant through the female line, is not a lineal descendant under Mohammedan law and thus not entitled to mutawalliship.
Law Points
- Interpretation of waqf deed
- joint mutawalliship
- succession of mutawalli
- lineal descendant under Mohammedan law
- applicability of Indian Succession Act to Muslims
