IMPORTANT POINTS
Mutwalli is a mere a manager having no right in the property. He cannot transfer his office to another person unless expressly provided by the wakif in Waqf deed.
Term “putro poutradi krome” does not envisage female descendants to fall within the purview of these words and hold the office of mutawalli.

JUDGMENT :

Mohan M. Shantanagoudar, J.

1. The instant appeal arises out of a decision of the High Court of Calcutta dated 01.10.2008 in the revisional application C.O. No. 936 of 2006, setting aside the order dated 28.02.2006 passed by the Presiding Officer, Wakf Tribunal, West Bengal in Appeal No. 6 of 2005.

2. The brief facts giving rise to this appeal are as follows:

One Syed Obaidullah Baghdadi Shah founded a khankhah, a Mohammedan institution for imparting religious doctrine and rules of life. He gradually became its first spiritual superior or sajjadanashin. One of his devotees, Abdur Rahim, created a wakf in respect of certain properties by a registered deed of wakf dated 07.02.1913 (hereinafter ‘the wakf deed’). Written in Bangla/Bengali language, this deed provided that Syed Obaidullah Baghdadi would be appointed as the sole mutawalli (hereinafter ‘original mutawalli’) of the wakf. It also provided that the office of the mutawalli would devolve to “putro poutradi krome” of the original mutawalli.

On the death of the original mutawalli, his disciple and son Syed Gyasuddin Ahmed Baghdadi (hereinafter ‘Gyasuddin Ahmed’) became the sajjadanashin and mutawalli of the wakf estate. In 1977, when Gyasuddin Ahmed died, he was survived by his wife, six sons, and nine daughters. According to his Will, his eldest son Syed Badruddin Ahmed (hereinafter ‘last mutawalli’) was authorized to act as the sajjadanashin for one of the dargahs in the wakf property. His name was also recorded as the mutawalli of the wakf estate.

On 19.11.1992, Syed Badruddin Ahmed died, leaving behind his widow, Nazira Khatoon, and his daughters, one of whom is the Appellant herein. Crucially, he did not have any male issue. After his death, Nazira Khatoon applied to the Board of Wakfs to be appointed as the mutawalli of the wakf estate. Her claim was based on a trust deed dated 03.02.1984 executed by Syed Badruddin Ahmed, by which he had appointed her to be the mutawalli of the wakf estate after his death (hereinafter ‘the trust deed’).

3. By order dated 30.01.1995, the Commissioner of Wakfs allowed this application and appointed Nazira Khatoon as the permanent mutawalli of the wakf estate. Her name was accordingly substituted in place of her deceased husband’s.

However, a dispute ensued when Respondent No. 1 herein, who is the grandson of Gyasuddin Ahmed and nephew of the last mutawalli, filed a writ petition, objecting to the appointment of Nazira Khatoon. He alleged that her appointment went against the original wakf deed. Consequently, the High Court directed the Wakf Board to decide the application submitted by Nazira Khatoon again, after considering the objections of Respondent No. 1.

Upon consideration of arguments by both the parties, the Wakf Board passed a new resolution on 14.10.1999 observing that the wakf deed only provides for a male lineal descendant to be the mutawalli of the wakf estate. It was observed that by appointing Nazira Khatoon as the mutawalli of the estate, the Board committed an error, and her appointment based on the trust deed dated 03.02.1984 was in violation of the provisions of the original wakf deed. Thus, adhering to the line of succession in the original wakf deed, the members of the Wakf Board cancelled the appointment of Nazira Khatoon as the mutawalli of the estate. Instead, Respondent No. 1 was appointed as the mutawalli, being the male lineal descendant of the original mutawalli.

4. This resolution was challenged by Nazira Khatoon in a writ application, which was transferred to the Wakf Tribunal, West Bengal and numbered as Appeal No. 6 of 2005. After hearing both the parties, the Presiding Officer allowed the appeal by judgment and order dated 28.02.2006. This was done on the basis of the determination that the Wakf Board does not have the power to review its earlier decision. Thus, it was held that the order cancelling Nazira Khatoon’s initial appointment amounted to a review, and was liable to be set aside.

5. Being aggriev