Supreme Court clarifies succession of Mutawalli in Waqf: Md. Abrar vs. Meghalaya Board of Wakf (26 September 2019)

Date of the Judgment: 26 September 2019

Citation: Civil Appeal No. 4025 of 2010

Judges: N.V. Ramana, J., Mohan M. Shantanagoudar, J., Ajay Rastogi, J.

Can descendants through the female line be considered for the position of mutawalli in a Waqf? The Supreme Court of India addressed this question in a recent case concerning a dispute over the management of a Waqf property. The core issue revolved around interpreting the term “family line” in a Waqf deed and whether it includes descendants through female relatives. This judgment, delivered by a three-judge bench comprising Justices N.V. Ramana, Mohan M. Shantanagoudar, and Ajay Rastogi, clarifies the principles governing succession to mutawalli positions in Waqfs.

Case Background

The case originated from a Waqf deed executed on 9 November 1936, by Haji Elahi Baksh, who dedicated his properties, along with those of his son Md. Shafi and son-in-law Haji Kammu Mia, to the Waqf. The deed stipulated that Md. Shafi and Kammu Mia would be joint mutawallis during their lifetime. Upon the death of either, the survivor would become the sole mutawalli, with the power to nominate a successor from the waqif’s family line. Subsequent mutawallis would also have the right to nominate their successors from the same source. If a mutawalli died without nominating a successor, the senior-most member among the lineal descendants of Md. Shafi and Kammu Mia would be entitled to the office.

Md. Shafi died on 20 December 1960, and Kammu Mia became the sole mutawalli. However, Kammu Mia did not appoint a successor for Md. Shafi. Consequently, Md. Sulaiman, son of the late Md. Shafi, was appointed as joint mutawalli with Kammu Mia by the Assam Wakf Board on 4 March 1973. Kammu Mia died on 2 February 1980, and Md. Sulaiman became the sole mutawalli but failed to nominate a successor for Kammu Mia. This led to a series of disputes, with various descendants of Kammu Mia claiming the position of mutawalli.

Timeline:

Course of Proceedings

The Assam Wakf Board initially appointed Md. Sulaiman as a joint mutawalli after the death of Md. Shafi. Later, the Meghalaya Wakf Board recognized Md. Sulaiman as the sole mutawalli after Kammu Mia’s death. Md. Taiyab, Kammu Mia’s daughter’s son, challenged this decision, but his application was dismissed by the Wakf Tribunal, which interpreted the term ‘family line’ to exclude descendants through the female line, relying on Section 25 of the Indian Succession Act, 1925. The High Court upheld the Tribunal’s decision, but noted that descendants of Kammu Mia should be included in the management of the trust. The High Court also observed that the definition under Section 25 of the Indian Succession Act, 1925, could be taken into consideration for interpreting the meaning of the term ‘family line’. The High Court dismissed the petitions of Md. Zakaria and Md. Taiyab. Subsequently, the Supreme Court declined to grant leave to appeal to Md. Zakaria and the Meghalaya Wakf Board, but kept the question of law open. Following this, Md. Abrar, another descendant of Kammu Mia through the female line, approached the Wakf Tribunal, which was also dismissed. The High Court upheld this dismissal, leading to the present appeal before the Supreme Court.

Legal Framework

The primary legal framework in this case is based on the interpretation of the Waqf deed dated 9 November 1936, and the relevant provisions of the Waqfs Act, 1995. The Waqf deed specified the succession of mutawallis, stating:

• “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.”
• “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.”
• “Each successive Mutawallis thereafter shall have the right to nominate his successor from the same source.”
• “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.”

The High Court had also referred to Section 25 of the Indian Succession Act, 1925, which defines lineal consanguinity as:

“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…”

Section 63 of the Waqfs Act, 1995, was also considered, which provides the Board with the power to appoint mutawallis in certain cases:

“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.”

Arguments

Appellant’s Arguments (Md. Abrar):

• The appellant, a descendant of Kammu Mia through the female line, argued that the term “family line” in the Waqf deed should include descendants through both male and female lines.
• He contended that the waqif intended for the management of the Waqf to remain within the broader family, encompassing all descendants of both Md. Shafi and Kammu Mia.
• He relied on the fact that the waqf was constituted of properties belonging to both Md. Haji and Kammu Mia, and therefore, the descendants of both should be included in the management of the trust.

Respondent’s Arguments (Meghalaya Board of Wakf):

• The Meghalaya Wakf Board initially argued that the term ‘family line’ should be interpreted strictly to exclude descendants through the female line, relying on the interpretation of Section 25 of the Indian Succession Act, 1925.
• However, the Board later agreed to appoint the appellant as a joint mutawalli, seeking clarification on the High Court’s contradictory findings regarding the cessation of joint mutawalli-ship.

Respondent’s Arguments (Md. Sulaiman):

• Md. Sulaiman, the current mutawalli, did not appear before the Supreme Court to contest the appellant’s case.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. 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?
2. 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?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court allowed the appeal, setting aside the High Court’s judgment. The Court held that the waqf deed intended that after the death of either of the original joint mutawallis, the survivor was required to nominate a person from the waqif’s family line to succeed the deceased. The Court also clarified that the term “family line” includes descendants through the female line. However, the Court did not make a specific finding regarding the appellant’s entitlement to the office of mutawalli. Instead, it directed the Meghalaya Wakf Board to appoint a competent person from among Kammu Mia’s descendants to succeed to joint mutawalli-ship.

How each authority was viewed by the Court?

• The Supreme Court relied on Haji Abdul Razaq v. Sheikh Ali Baksh, (1947-48) 75 IA 172* to establish the principle that upon the death of one joint mutawalli, the office passes to the survivor(s), but clarified that this principle is subject to the terms of the waqf deed, which in this case, required the surviving mutawalli to nominate a successor.
• The Court distinguished Commissioner of Wakfs v. Asraful Alam Shani and another, AIR 1975 Cal 162*, noting that unlike in that case, the waqf deed in the present case used the phrase ‘for the time being’, indicating that the sole mutawalli-ship was temporary.
• The Court analyzed Md. Eshaque v. Md. Amin, AIR 1948 Cal 312* and clarified that this case did not rule out that mutawalli-ship can never devolve upon the descendants through the female line, and that the interpretation of the waqf deed is paramount.
• The Court used Sheikh Karimodin v. Nawab Mir Sayad Alam Khan, 10 Bom. 119* and Syed Mahomed Ghouse v. Sayabarin Sahib (deceased), AIR 1935 Mad 638* to support the view that terms like ‘ahfad’, ‘batnam bad batnam’ and ‘naslan bad naslan’ can include descendants through the female line.
• The Court referred to Wares Ali v. Sheikh Shamsuddin, (1936) 63 Cal. L.J. 573* to support the interpretation that the term ‘legal heirs’ can include lineal descendants in both the male and female line based on the intention of the waqif.
• The Court cited Aliyathammuda Beethathebiyyappura Pookoya & Ors. v. Pattakal Cheriyakoya & Ors., C.A. No. 9586/2010* to emphasize that the intention of the waqif is of paramount importance in determining hereditary succession to mutawalli-ship.
• The Court used Section 63 of the Waqfs Act, 1995 to direct the Meghalaya Wakf Board to appoint a competent person from among Kammu Mia’s descendants to succeed to joint mutawalli-ship.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several key factors. The primary consideration was the intention of the waqif as expressed in the waqf deed. The Court emphasized that the waqf deed did not explicitly exclude descendants through the female line. The use of the phrase ‘for the time being’ indicated that the waqif intended the surviving mutawalli to act as a temporary caretaker until a successor from the family line was appointed. The Court also considered the fact that the waqf was constituted of properties belonging to both Md. Haji and Kammu Mia, implying that descendants from both sides should be included in the management of the trust. The Court also noted that the waqif must have been aware that Kammu Mia’s descendants would be through the female line. The Court rejected the High Court’s reliance on Section 25 of the Indian Succession Act, 1925, for interpreting the term ‘family line’, noting that the said Act does not apply to Muslims. The Court also considered the order of the Assam Wakf Board dated 4 March 1973, which had appointed Md. Sulaiman as joint mutawalli, indicating that the waqf board had previously interpreted the waqf deed to include descendants of both Md. Shafi and Kammu Mia.

Logical Reasoning:

The Court considered alternative interpretations, including the High Court’s reliance on Section 25 of the Indian Succession Act, 1925, but rejected it, noting that the said Act does not apply to Muslims. The Court emphasized that the intention of the waqif, as expressed in the waqf deed, is paramount. The final decision was reached by interpreting the waqf deed in a manner that promotes the inclusion of all descendants of the waqif, regardless of whether they are through the male or female line.

The Court’s reasoning was based on a step-by-step analysis of the waqf deed, considering the historical context and the principles of Muslim law. The Court emphasized the importance of giving effect to the waqif’s intention, as far as possible. The Court also considered the practical implications of its decision, ensuring that the management of the waqf remains within the family of the waqif.

The Court quoted the following from the judgment:

• “On the death of either of the joint mutawallis, the survivor shall be the sole Mutawalli ‘for the time being.’(emphasis supplied)”
• “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.”
• “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.’”

There was no minority opinion in this case. All the three judges concurred on the judgment.

Key Takeaways

• The term “family line” in a Waqf deed can include descendants through both male and female lines, unless explicitly excluded by the waqif.
• The intention of the waqif, as expressed in the waqf deed, is paramount in determining the succession of mutawallis.
• The surviving mutawalli’s sole mutawalli-ship is temporary, and they are required to nominate a successor from the waqif’s family line.
• The Waqf Board has the power to appoint a mutawalli if there is a vacancy and no one to be appointed under the terms of the Waqf deed.
• Descendants through the female line are not automatically excluded from being considered for mutawalli-ship.

Directions

The Supreme Court directed the Meghalaya Wakf Board to appoint a competent person from among Kammu Mia’s descendants to succeed to joint mutawalli-ship. The Court also directed that the said successor shall have the right to nominate his successor, and in the event of the death of Respondent No. 2, to nominate a successor from Respondent No. 2’s family line, including descendants through the female line.

Development of Law

The ratio decidendi of this case is that the term “family line” in a Waqf deed can include descendants through both male and female lines, unless explicitly excluded by the waqif. This judgment clarifies the interpretation of Waqf deeds and ensures that the management of Waqf properties remains within the broader family of the waqif. This case also clarifies that the surviving mutawalli’s sole mutawalli-ship is temporary, and they are required to nominate a successor from the waqif’s family line. This position is a clarification from the previous position of law where the sole mutawalli was considered to be the permanent mutawalli.

Conclusion

In conclusion, the Supreme Court’s judgment in Md. Abrar vs. Meghalaya Board of Wakf clarifies the principles governing the succession of mutawallis in Waqf properties. The Court emphasized the importance of interpreting the waqf deed in a manner that reflects the intention of the waqif. The judgment ensures that descendants through the female line are not automatically excluded from consideration for mutawalli-ship, thereby promoting inclusivity and fairness in the management of Waqf properties. The Court’s direction to the Meghalaya Wakf Board to appoint a competent person from among Kammu Mia’s descendants ensures that the management of the Waqf remains within the family of the waqif.