FIROZUDDIN Vs. BOARD OF WAQF

JUDGEMENT

(1.) Present application under Article 227 of the constitution of India has been assailed against the judgment and order dtd. 17/9/2019 passed by learned Waqf Tribunal, West Bengal, Kolkata in O.A. No. 10 of 2014. Background of the case, in a nutshell, is that one Sabujan Bibi created the Waqf Estate in respect of her property. Waqifa Sabujan Bibi also made rule of succession regarding appointment of Mutwaliship in the deed of waqf stating that she will remain mutwali during her life time and after her death Md. Ali Hossain, who is her brother and in the absence of Ali Hossain his other brothers, one after another, as per the seniority, would be the Mutwali. Accordingly Md. Ali Hossain and thereafter imam Hossain was appointed as Mutwali and after his death, his brother Nader Ali was appointed as Mutwali. It is alleged that during the tenure of Nader Ali he filed an application before the Board of Waqf on 18/12/1989 for appointment of Nayeb Matwali as he was suffering from various health hazards. Subsequently said Nader Ali on 29/5/1991 made another application before the Board of Waqf with a prayer to appoint his wife Ahmdi Bibi as Mutwali and subsequently a resignation letter was filed by Nader Ali to that effect and the same was identified by father of Opposite party no. 2 herein. On 16/7/1991 Nader Ali also submitted an affidavit with the same prayer. On 10/12/1991 Nader Ali made an application for cancellation of Nayeb Mutwaliship and his LTI (Left thumb impression) in the said application was identified by husband of present opposite party no. 2, Seikh Haider Ali.

(2.) Said Haider Ali subsequently filed an application on 11/12/1991 that he took no objection certificate from Nader Ali and accordingly he may be appointed as Mutwali. The Board isisued notice to Haider on 15/2/1992 but prior to that Nader Ali died in the month of November, 1991. After his death, one of his brother Seikh Kasem Ali, a resident of Bangladesh filed an application before Board of Waqf on 27/2/1992 for appointing him as Mutwali. Inspite of two reminders, Board did not respond to Kasem's request. On the contrary Board of Waqf, on 23/6/1992 appointed Ahmedi Bibi who is the wife of Nader Ali, as Mutwali for a period of two years. After the expiry of her tenure, she filed an application for extension of Mutwaliship for another three years and the same was approved by the Board. Further case is that on 25/7/2003 an inquiry was conducted by the Board of waqf and the report shows that after death of Nader Ali who according to the petitioner died issueless, the petitioner herein has been looking after the Waqf Estate as per last nomination of Mutwaliship executed by Ahmedi Bibi. Accordingly on 8/7/2005 petitioner herein made an application before Board of waqf for appointment of his Mutwaliship wherein he has annexed copy of order of this High court, passed in WP no. 26 of 1996, wherein this court directed Board of waqf to fill up vacancy of Mutwaliship within a period of six weeks. The petitioner filed a Geneological table before the Board and contended that Nader Ali and Ahmeda Bibi both died issueless and accordingly as per genealogical table, Murshida Begum is the sister of Ahmedi Bibi. Father of present petitioner namely Md. Safi was the only son of said Murshida Begam. Said Md. Safi expired and petitioner being his legal heir is the only available descendant of the original waqifa and as such he is the fit person to be appointed as mutwali of the said property.

(3.) On 14/9/2000 Board of Waqf conducted hearing relating to appointment of mutwaliship . The opposite party no. 2 herein Nasreen sultana claiming herself as the daughter of Ayesha khatoon who happens to be the daughter of Nader Ali and Ahmadi Bibi, claimed mutwaliship in the suit property. Opposite party no. 2 herein contended that Ayesha Khatoon who is the mother of opposite party no. 2 and daughter of Nader Ali and Ahmedi Bibi was born in the year of 1931 in Dhaka, Bangladesh but her certificate was registered on 31/1/2009.