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1948 Supreme(SC) 38
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD NORMAND, LORD MACDERMOTT AND SIR JOHN BEAUMONT.
HAJI ABDUL RAZAQ - Appellant
Versus
SHEIKH ALI BAKHSH - Respondents
On appeal from the High Court at Lahore.
Decided On : Apr. 14. 1948.
Solicitors for appellant: Hy. S. L. Polak & Co.
In a wakf where the office of mutwalli is held jointly, the office passes to the surviving joint holder(s) upon the death of one, unless the wakif's directions or custom provide otherwise. A joint mutwalli cannot appoint a successor to an office that survives by law.
Headnote:(A) Mahomedan Law - Wakf - Appointment of Mutwalli - Where an office is held jointly by multiple persons as holders of a single office, and in the absence of any direction, express or implied, given by the wakif or other competent authority, or evidence of custom to the contrary, the ordinary rule that an office held jointly will pass on the death of one holder to the survivors or survivor must prevail. (Para 14)
(B) Mahomedan Law - Mutwalli - Power to appoint successor - Discussion on the rule that a mutwalli may appoint a successor only on his death-bed (mortal sickness) and cannot do so while in good health - Such a rule is secondary to the principle of survivorship when the office is held jointly. (Paras 11-13)
Facts of the case:
Under a will, a portion of an estate was given in charity, and a mutwalli was appointed for the resulting wakf. The original mutwalli subsequently appointed his three sons as joint mutwallis. Following the death of one son, the remaining two continued to manage the wakf. One of the surviving joint mutwallis executed a will appointing his own son as his successor and representative to manage the property. The appointed successor subsequently mortgaged and leased part of the wakf property to a third party to secure a loan for repairs and improvements. The other surviving joint mutwalli filed a suit seeking a declaration that the properties were wakf and that the appointment of the successor and the subsequent mortgage and lease were invalid.
Findings of Court:
The courts found that the mortgage and lease were not executed out of necessity and were therefore invalid. Regarding the appointment of the successor, the court held that since the office of mutwalli was held jointly by the brothers, the office survived to the appellant upon the death of the other joint holder. Consequently, the deceased joint mutwalli had no power to appoint a successor.
Issues: Whether a mutwalli in good health is competent to appoint a successor under Mahomedan law, and whether an office of mutwalli held jointly passes to the surviving holder upon the death of one of the joint holders.
Ratio Decidendi: In the absence of specific instructions from the wakif or established custom, an office held jointly is treated as a single office. Upon the death of one joint holder, the office survives to the remaining holder(s). Therefore, a joint mutwalli cannot validly appoint a successor to an office that, by law, survives to the other joint holder.
Result: Appeal allowed; declaration that the mortgage and lease were invalid; properties declared wakf properties; appointment of the second respondent as mutwalli held invalid; decree for possession granted in favour of the appellant.
Appeal (No. 67 of 1946) from a judgment and decree of the High Court (July 12, 1944) which affirmed a judgment and decree of the Commercial Subordinate Judge, First Class, Delhi (June 28, 1941).
The following facts are taken from the judgment of the Judicial Committee. In the year 18S5 one Sheik Mohammad Taqi made a will by which, so far as relevant, he gave one-third of his property in charity and appointed Qutab-ud-Din as his executor. In or about the year 1872 Qutab-ud-Din received a sum of Rs. 1,66,683-3-8 on account of the share of the estate of Sheikh Mohammad Taqi given in charity, and their Lordships of the Board thought, in agreement with the High Court in India, that Qutab-ud-Din was in possession of that property as mutwalli of a wakf. On April 17, 1874, Qutab-ud-Din made a will in which he stated that he was the manager of an Institu tion created for religious purposes by the said Sheik Mohammad Taqi and he executed his will in favour of his three sons, Abdul Ghani, Mohammad Shafi and the appellant, Abdul Razaq, with the idea that the entire business of the Institution should continue and subsist after his death. He then admitted that he was in possession of immovable property worth Rs. 40,000 pertaining to the said Institution and directed the legatee to apply the income for religious purposes. It was not clear how the balance of the fund originally received by Qutab-ud-Din in 1874 had been dealt with, but his sons never disputed that they held the fund received by them under his will as mutwallis of a wakf. Probably their appointment as mutwallis could be justified on the ground that Qutab-ud-Din was the executor of the wakif but, in any case, their appointment had never been challenged. In 1902 Mohammad Shafi, one of the sons of Qutab-ud-Din, died, and thereafter Abdul Ghani and the appellant continued to act as mutwallis. By two agreements dated respectively September 15, 1914, and June 27, 1927, Abdul Ghani and the appellant divided between them work connected with the wakf. Their Lordships of the Board thought that those agreements were designed only to facilitate the administration of the wakf, and that such agreements did not purport, and in law were incompetent, to divide the wakf into two wakfs.
On March 2, 1924, Abdul Ghani, while in sound health, made a will by which, after reciting that under the will of his father he along with his brother the appellant was the executor and trustee of the properties therein mentioned, and that he and his said brother held proprietary possession of the entire property bequeathed as trustees and managed the same, and that he considered that the charitable institution should continue after his death, he appointed his son, respondent No. 2, his executor, successor and representative and directed that after his, the testators, death respondent No. 2 should be competent to manage the property bequeathed along with the appellant jointly or severally as the testator was then doing, and he directed that respondent No. 2 should utilize the entire income from the aforesaid property for charitable purposes. Abdul Ghani died on April 10, 1939. On October 24, 1939, the second respondent mortgaged part of the property comprised in the said wakf to the first respondent to secure a sum of Rs. 10,000, and it was recited in the mortgage that the father of the second respondent was the owner as trustee of the property, that he, the second respondent, was the executor, successor and representative under his fathers will, and that the purpose for which the mortgage was executed was to meet the cost of repairs, construction and improvement of the trust property. On the same day the second respondent executed a lease in favour of the first respondent in respect of the property comprised in the mortgage.
This suit was filed on April 19, 1940, by the appellant as plaintiff against the respondents as defendants. The relief claimed was a declaration that the properties referred to in t
