ABRAR Vs. MEGHALAYA BOARD OF WAKF

JUDGEMENT

(1.) WHETHER a person claiming through the female descendant of a deceased wakif is entitled to be appointed as a mutawalli, or a joint mutawalli, of a wakf property, is the moot point in this revision petition. To appreciate the rival contentions of the parties, the material facts of the case, as pleaded by the petitioner, may be noticed at the very outset. Sometime in the year 1936, one Haji Elahi Baksh had executed a registered Deed of Wakf bearing dated 9. 11. 1936 constituting Wakf for several properties belonging to himself, his son, Md. Shafi, and his son-in-law-cum-nephew, Haji Kammu Mia. The petitioner is the grandson of the said Haji Kammu Mia through his daughter, the late Sabra Khatoon. Incidentally, the petitioner is also the son of one Md. Ayub, who, in turn, is the son of one Makhdum Baksh, the brother of the said Haji Kammu Mia. Clause 1, 2, 3 and 5 of the Wakf-Deed are important for our enquiry, and are reproduced below :-

(2.) IT would appear that one of the joint mutawalli i. e. the said Md. Shafi died on 20. 12. 1960 whereupon the surviving joint mutawalli, namely, Haji Kammu Mia, became the sole mutawalli. According to the petitioner, the sole surviving Mutawalli was required to appoint a successor of the deceased mutawalli in terms of Clause 2 of the Wakf Deed. However, the said Kammu Mia failed to comply with the requirement of Clause 2 of the Wakf Deed which prompted Md. Sulaiman, son of the late Md. Shafi, to approach the Assam Board of Wakf (as it then was under the undivided Assam) for his appointment as Joint Mutawalli together with the said Kammu Mia. The Assam Board, after purportedly making an enquiry, by the order dated 4. 3. 1973 appointed Md. Sulaiman as joint mutawalli. Md. Sulaiman thereafter acted as joint mutawalli till 2. 2. 1980 when Haji Kammu Mia died. On the death of the said Haji Kammu Mia, Md. Sulaiman became the sole mutawalli. According to the petitioner, Md. Sulaiman also neglected to appoint a joint mutawalli from the family line of the deceased, Haji Kammu Mia, with a view to usurp the office of mutawalli and manage the wakf property at his sweet will. It would appear that the late Haji Kammu Mia during his lifetime by the Deed of Appointment dated 19. 2. 1973 had nominated his own grandson, namely, Md. Taiyab as his successor instead of nominating the successor of Md. Shafi as the sole mutawalli and communicated the same to the Assam Wakf Board. This arrangement was challenged before the Wakf Tribunal, Shillong in Wakf Case No. 1 of 2002, and was set aside by the order dated 19. 7. 2006. It may be noted that during the pendency of Wakf Case No. 1 of 2002, Md. Zakaria, the grandson of Haji Kammu Mia, intervened in the case and prayed for his appointment as joint mutawalli but the same was rejected on the ground that there was no provision for joint mutawalli in the Wakf Deed.

(3.) IT is the submission of Ms. S. A. Pandit, the learned counsel for the petitioner that though this Court had decided that someone from the family of Haji Kammu Mia is entitled to succeed as joint mutawalli, it deviated from the principles of Mohammedan Law by importing the concept of "lineal descendant" or "direct descendant" from Section 25 of the Indian Succession Act, 1925, which is not applicable to the Muslims and has in the process illegally excluded the female descendants of Haji Kammu Mia for becoming mutawalli or joint mutawalli. The learned counsel for the petitioner further submits that none from the family line of Haji Kammu Mia is appointed as joint mutawalli, and leaving all the wakf properties under the control of the sole mutawalli will lead to their illegal alienation/transfer at the hand of the respondent No. 2. The learned counsel also contends that the Board grossly erred in not considering the various clauses of the Wakf Deed and in ignoring the illegal acts of the respondent No. 2, which resulted in grave jurisdictional error as well as non-application of mind. She, therefore, strenuously urges this Court to quash the impugned order and direct the Meghalaya Wakf Board to appoint someone from the family line of Kammu Mia as joint mutawalli. Mr. K. S. Kynjing, the learned senior counsel appearing for the Meghalaya Wakf Board, however, submits that some confusion has crept in due to the contradictory findings of this Court and in the light of the observation of the Apex Court that question of law, if any, was left open, this Court may enunciate the correct position of law concerning the appointment of mutawalli/joint mutawalli from persons claiming through the female descendant of the settler/founder of the wakf. Mr. H. Ahmed, however, vehemently supports the impugned order and submits that following the decision of this Court as affirmed by the Apex Court on the subject-matter, there is no scope for interference by this Court in the impugned order. He points out that Md. Zakaria, Md. Taiyab and the petitioner herein belong to the same family of Kammu Mia, and are filing one application after another without reasonable cause with an ulterior motive of disrupting the proper management of the wakf property. He, therefore, prays that the revision petition be dismissed with heavy costs for causing vexation to the respondent No. 2.