Hereditary succession must be honored in wakf management; irrelevant factors like proximity cannot influence the appointment of the mutawalli.

ORDER

The present writ petition is filed praying for a writ of certiorarified mandamus to quash the impugned order dated 05.09.2023, made by the 1^st respondent in SE.MU.ANAI:15121/22/A1/Thiveli and to consequently direct respondents 1 and 2 to approve the petitioner as the Mutawalli of Khabardhar Fackier Thaika Waqf, Kunathur, Tirunelveli.

2. Brief Facts:

2.1. Khabardhar Fackier Thaika Waqf, Kunathur, Tirunelveli is a notified waqf.

Rule of succession to the office of mutawalli of the subject waqf is hereditary.

2.2. Petitioner's father Late Mr.M.Ismail Khan was mutawalli. Petitioner's father died sometime in 1991. Mr.Ismail Khan was survived by Petitioner, Akbar Khan (petitioner's elder brother) Dharvesh Khan (petitioner's younger brother) and two younger sisters viz., Sherifa Begum and Meharnisha Begum. After the demise of Mr.Ismail Khan, Akbar Khan became mutawalli in terms of Rule of Succession i.e., “hereditary” as provided in the proforma. During mutawalliship of Mr.Akbar Khan, petitioner's younger brother and father of the 3^rd respondent, Dharvesh Khan died on 04.01.2021. Petitioner's elder brother Mr.Akbar Khan resigned citing health concerns.

2.3. Petitioner would submit that on resignation by Mr.Akbar Khan, petitioner as the next eldest descendant of Mr.Ismail Khan after Mr.Akbar Khan assumed office of mutawalli to the subject wakf. Importantly, legal heirs of Ismail Khan vide proceedings dated 17.08.2021, unanimously accepted writ petitioner as the mutawalli. Petitioner submitted an application to the wakf board to take on record/file the change in mutawalliship.

2.4. Objections were raised by petitioner's sisters and 3^rd respondent. Waqf Inspector, Tirunelveli, considering the objections raised by petitioner's sisters and 3^rd respondent, summoned all parties for enquiry at the instance of the Chairman of the Board. After recording statements from petitioner's sisters and after holding an enquiry a report was submitted to the 1^st respondent Board. In the report it was inter alia observed that, though it may be lawful to appoint petitioner as mutawalli in his capacity as eldest member of the family, however, inasmuch as petitioner is resident of Tuticorin District and 3^rd respondent resides in the same locality/village where the waqf is located, 3^rd respondent was found better suited to be a mutawalli. In view thereof, recommended the 3^rd respondent be appointed as mutawalli of the waqf. Acting on the same, Board by its impugned order dated 05.09.2023 appointed 3^rd respondent as mutawalli of subject waqf for the period between 22.08.2023 and 21.08.2026 on the ground that he resides in the same locality/village as Wakf, whereas writ petitioner resides in Eeral, Tuticorin District. Aggrieved by the same, the present writ petition has been filed.

3. Against this background question arises as to whether the impugned order stands vitiated on the premise that it takes into account irrelevant factors namely proximity of residence to wakq while appointing mutawalli. Secondly, when proforma provides that the rule of succession shall be hereditary, whether rule of primogeniture is applicable.

4. Before proceeding to address the above issues, it is necessary to bear in mind that when Wakf is created, all rights in property pass from wakif or creator to God. Mutawalli is a manager of such property. Mutawalli has no right in property belonging to wakf. Succession to office of mutawalli should be in accordance with intention of wakif and same cannot be subverted contrary to intention of wakif.¹ In the instant case, rule of succession to the office of mutawalli in terms of proforma is “hereditary”. It may be relevant to extract the relevant portion of the proforma which read