2019 Supreme(SC) 1075

SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, AJAY RASTOGI, JJ.
Md. Abrar – Appellant
Versus
Meghalaya Board of Wakf & Anr. – Respondents
Civil Appeal No. 4025 of 2010
Decided on : 26-09-2019

IMPORTANT POINTS
Ordinarily, upon the death of one of the joint mutawallis, the surviving mutawalli becomes the sole mutawalli - In case of more than two joint mutawallis, after the death of one of the mutawallis, only the remaining mutawallis would be entitled to continue as joint mutawallis. Any successor nominated by the deceased mutawalli can only assume office after the death of the original mutawallis, unless there is an express or implied direction in the waqfnama to the contrary.
Daughter’s children and their descendants are also included as descendants of deceased, though a more distant class of heirs than agnatic heirs.

Headnote:

(a) Mahomedan Law - Waqf - Mutawalli - Ordinarily, upon the death of one of the joint mutawallis, the surviving mutawalli becomes the sole mutawalli - In case of more than two joint mutawallis, after the death of one of the mutawallis, only the remaining mutawallis would be entitled to continue as joint mutawallis - Any successor nominated by the deceased mutawalli can only assume office after the death of the original mutawallis, unless there is an express or implied direction in the waqfnama to the contrary - Instantly waqif intended that after the death of either of the mutawallis, the survivor shall continue as the sole mutawalli only for a temporary period till he nominates a competent successor to the deceased mutawalli from the waqif’s family line - Thereafter, the said successor may nominate his successor from the same source - Held, Respondent No. 2 cannot seek appointment as joint mutawalli to the exclusion of descendants of his erstwhile comutawalli Kammu Mia. (Para 9)

(b) Mahomedan Law - Waqf - Mutawalliship - Daughter’s children and their descendants also included as descendants of deceased, though a more distant class of heirs than agnatic heirs - Issue of succession to joint mutawalliship depends on interpretation of the waqf deed - Instantly descendants through the female line not excluded - Waqif included direct descendants of his son as also his descendants through the female line, which includes Kammu Mia’s daughter’s descendants, as part of his ‘family line’. (Para 12)

(c) Waqfs Act, 1995 - Section 63 - Respondent no. 2 declining to nominate a successor to deceased Kammu Mia, as provided for under the terms of the waqf deed - Respondent no.1- Waqf Board directed to appoint a competent person from amongst the Kammu Mia’s descendants to succeed to joint mutawalliship. (Para 13)

Facts of the case:

One Haji Elahi Baksh (‘waqif’), who was resident of Shillong, executed a registered waqf deed dated 9.11.1936 dedicating properties belonging to himself, his son Md. Shafi and his soninlaw cum nephew Haji Kammu Mia to the waqf.

Md. Shafi died on 20.12.1960, whereupon the surviving mutawalli among the joint mutawallis, namely Haji Kammu Mia became the sole mutawalli. However Kammu Mia did not appoint the successor to the deceased Md. Shafi. Hence Respondent No. 2 in the present appeal, Md. Sulaiman, who is the son of the late Md. Shafi, approached the Assam Wakf Board, which had territorial jurisdiction at that time, seeking appointment as joint mutawalli with Kammu Mia. The Assam Waqf Board appointed Respondent No. 2 as joint mutawalli along with Kammu Mia.

After Kammu Mia’s death on 2.2.1980, Md. Sulaiman became the sole mutawalli. However, this time it was Md. Sulaiman failed to nominate a successor to the deceased Kammu Mia even though Kammu Mia during his lifetime had nominated his daughter’s son Md. Taiyab as his successor.

In the meantime a separate Wakf Board, i.e. Respondent No.1 was constituted for the State of Meghalaya. Respondent No. 1 by order dated 7.2.1980 recognized Md. Sulaiman as the sole mutawalli.

The High Court further found that there was no provision in the waqf deed dated 9.11.1936 for the appointment of another joint mutawalli by the surviving mutawalli after the death of one of the original joint mutawallis. The concept of joint mutawalliship would cease to have any effect after the death of any of the original joint mutawallis. The surviving mutawalli is only empowered to nominate his successor. It is only after the direct lineal descendants of the waqif are exhausted that Kammu Mia’s descendants can be considered for appointment as mutawallis.

Finding of the Court:

Respondent No. 2 cannot seek appointment as joint mutawalli to the exclusion of descendants of his erstwhile comutawalli Kammu Mia.

Result: Appeal allowed.