26 September 2019
Supreme Court


Case number: C.A. No.-004025-004025 / 2010
Diary number: 11038 / 2009
Advocates: MUKESH K. GIRI Vs





Md. Abrar …Appellant


Meghalaya Board of Wakf & Anr. …Respondents




1. This appeal arises out of judgment dated 28.01.2009 of the

Shillong Bench of the Gauhati  High Court.  The High Court  by  the

impugned  judgment  dismissed  the  appellant’s revision petition  and

confirmed the order of the Wakf Tribunal dated 19.3.2008 dismissing

the  appellant’s  application seeking  appointment  as joint  mutawalli,

along with Respondent No.2, of his predecessor’s waqf property.  

2. The facts giving rise to this appeal are as follows: 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.  The relevant clauses of the waqf deed are reproduced as


“1. The settlor’s son Md Shafi and son in law Kammu Mia, son of late S.K. Gajnu, shall be joint Mutawallis during their lifetime.

2. On the death of either of the joint mutawallis, the survivor shall be the sole Mutawalli for the time being and shall have power to nominate his successor from the family line of the settlor.

3. Each successive Mutawallis thereafter shall have the right to nominate his successor from the same source. 5. Should a Mutawalli die without nominating a successor, the senior most member among the lineal descendants of the said Md Shafi and Kammu Mia, if otherwise competent shall be entitled to hold the office of Mutawalli.”

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




The  Assam Wakf  Board,  by  order  dated  4.3.1973, found  that

under Clause 2 of the waqf deed dated 9.11.1936 (supra), the

surviving mutawalli from amongst the joint mutawallis was required to

nominate the successor of  the deceased mutawalli from the waqif’s

family line. Since the surviving mutawalli Kammu Mia had failed to do

so, the Wakf Board, taking note of the fact that Respondent No. 2 was

the son of the deceased mutawalli, appointed him as joint mutawalli

along with Kammu Mia. It is relevant to note that this order was not

challenged by any of the parties herein.  

Thereafter,  Respondent No. 2 Md. Sulaiman acted as the joint

mutawalli along with Kammu Mia, till Kammu Mia’s death on

2.2.1980, upon which Md. Sulaiman became the sole mutawalli.

However, this time  it  was Md.  Sulaiman who  failed to  nominate  a

successor to the deceased Kammu Mia. This was even though Kammu

Mia during his lifetime; by deed dated 19.2.1973 had nominated his

daughter’s son Md. Taiyab as his successor, which fact was also

communicated to the Assam Wakf Board.  

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.

Aggrieved  by the same,  Md.  Taiyab  approached  Respondent  No.  1

seeking appointment as the sole mutawalli;  however his application

was dismissed on the ground that he does not belong to the waqif’s

family line. His appeal against the order dated 7.2.1980 was dismissed

by orders of the Assistant Deputy Commissioner and Additional

Deputy Commissioner of Wakfs respectively. Further, the High Court

dismissed Md. Taiyab’s suit against Respondent No. 1 due to lack of

notice to the Wakf Board as required under Section 56 of the Wakfs

Act, 1954.  

3. Md. Taiyab again served notice on Respondent No. 1  in 2002,

after coming into force of the Waqfs Act, 1995 (‘1995 Act’). The Wakf

Tribunal by order dated 19.7.2006 relied upon Section 25 of the

Indian Succession Act, 1925 to interpret the term ‘family line of the

settlor’ as stated in the waqf deed. Section 25 of the Indian Succession

Act provides as follows:

“25. Lineal consanguinity.—(1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great­grandfather, and so upwards in the direct ascending line, or between a man and his  son, grandson, great­grandson and  so  downwards in direct descending line…”



Hence the Wakf Tribunal concluded that since Md. Taiyab was

Kammu Mia’s descendant through the female  line, he could not be

regarded as a direct lineal descendant, and hence was not eligible for

appointment as mutawalli.  

Additionally, one Md. Zakaria, who was also Kammu Mia’s

daughter’s son, was impleaded before the Tribunal in the same matter

seeking  appointment  as joint  mutawalli.  The Tribunal rejected Md.

Zakaria’s claim as well, holding that it was the intent of the wakif that

Md.  Shafi and  Kammu Mia  would enjoy joint  mutawalli­ship only

during their lifetime. Such joint mutawalli­ship was to cease on the

death of either of  the  joint mutawallis,  and thereafter the surviving

mutawalli and his successors would continue as the sole mutawalli.  

Md. Zakaria filed a revision petition against the Tribunal’s order

dated 19.7.2006 under Section 83(9)  of the  1995 Act  whereas Md.

Taiyab filed a writ petition challenging the same order. The High Court

by common order dated 25.7.2007 in W.P. No. 184/2006 and C.R.(P)

No. 26/2006 dismissed both petitions, affirming the Tribunal’s

findings. With respect to the issue of joint mutawalli­ship, the High

Court found that the trust property included property of the deceased

Kammu Mia. Hence the waqif would have definitely intended that one

person from Kammu Mia’s family should be included in the



management of the trust. Therefore Kammu Mia’s descendants would

be entitled to be appointed as a joint mutawalli along with the

descendants of Md. Shafi.  

However, the Court simultaneously observed that while Part IV of

the Indian Succession Act excludes applicability to Muslim persons, in

the absence of any definition of lineal descendants in the 1995 Act or

any authoritative pronouncement of Mohammedan law in this regard,

the definition under Section 25 of the Indian Succession Act could be

taken into consideration for interpreting the meaning of the term

‘family line’. Since  Kammu Mia  was  not survived  by  any son,  his

descendants through the female line could not be considered for the

office of joint  mutawalli­ship.  Further, that allowing the same as a

matter of law would lead to additional expansion in the list of

claimants which would not be in the interest of administration of the

trust  property.  This  Court  by  order  dated 7.9.2007  in SLP  (C)  No.

15494 of 2007 and by order dated 13.12.2007 in SLP (C) Nos. 24316­

24318 of 2007 declined to grant leave to appeal to Md. Zakaria and

Respondent No. 1 Wakf Board respectively, though it observed that

‘Question of law, if any, is left open.’  

4. In view of this  Court’s  observation, the  appellant  herein,  Md.

Abrar, who is the brother of Md. Zakaria and also a descendant of



Kammu Mia through the female line, approached the Wakf Tribunal

seeking appointment as a joint mutawalli. The Tribunal by order dated

19.3.2008 dismissed the appellant’s application on the ground that

the High Court order dated 25.7.2007 had attained finality and hence

the question of mutawalli­ship has been decided. The appellant filed a

revision petition before the High Court challenging the Tribunal order

dated 19.3.2008.  

The High Court, in substantial reliance upon the decision of the

Calcutta High Court in Md. Eshaque v. Md. Amin, AIR 1948 Cal 312,

held that while the founder’s female children may be considered as his

successors for mutawalli­ship, the descendants of the founder’s

daughters would not be considered as lineal descendants under

Mohammedan law, “unless there is a special  term in the wakf deed

indicating an intention to the contrary” (emphasis supplied). Hence the

appellant was excluded from consideration for mutawalli­ship.  

5. 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. Further, that once a daughter gets married, she

becomes a member of other families and her children cannot be the

direct lineal descendants of her father. Hence, 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.  The

High  Court  also found that there  was  no  custom or  usage to the

contrary supporting the appointment of joint mutawallis after the

death of Md. Shafi and Kammu Mia. Hence this appeal.  

6. Heard both sides. It is relevant to note that Respondent No. 2

Md. Sulaiman, the present mutawalli of the waqf, has not appeared

before this Court contesting the appellant’s case. Respondent No. 1,

Meghalaya Wakf Board, is agreeable to appoint the appellant as a joint

mutawalli along with Respondent No. 2. However, Respondent No. 1

has only sought a clarification in so far as the common order of the

High Court dated 25.7.2007, in W.P. No. 184/2006 and C.R.(P) No.

26/2006, had found that the waqif had intended that Kammu Mia’s

descendants should continue as one of the joint mutawallis. Whereas

the High Court in the impugned judgment made a contradictory

finding to the effect that the waqf deed dated 9.11.1936 provided for

the cessation of joint mutawalli­ship upon the death of either of the

original joint mutawallis.



7. Since this Court in SLP (C) No. 15494 of 2007 and SLP (C) Nos.

24316­24318 of 2007 has declined leave to appeal against the High

Court order dated 25.7.2007, we will not be interfering with the

findings therein, but will limit our conclusions to the questions of law

and fact raised in the present appeal. The two issues which arise for

our consideration in the present appeal are:  

First, whether a person from the waqif’s family line could succeed

to the vacant post of joint mutawalli after the death of any of the two

original joint mutawallis?

Second, if the first issue is answered in the affirmative, whether

joint mutawalli­ship can be held by the appellant herein, though he is

Kammu Mia’s daughter’s son?

8. With respect to the first issue,  we  may refer to the following

observations of learned author Mulla in Principles of Mahomedan Law

(21st  edn., 2017, Prof. Iqbal Ali Khan ed.) (for short “Mulla”) on  page

253,  which  were relied  upon  by the  High  Court in the impugned


“S 205A. Succession where two are more mutawallis are jointly appointed. Where two or more mutawallis are appointed as joint mutawallis i.e., as joint holders of a single office,  and there is no direction, express or implied, given by the waqif and where there is no evidence of custom supporting a usage to the contrary, the office of mutawalli­ ship held jointly will pass on the death of one holder to the survivor or survivors…



…A,  B and  C  are appointed joint  mutawallis of a  waqf. There is no direction in the waqfnama with regard to what is to  happen  if  one of them were  to  die  and there  is  no evidence of custom. A dies, but before he dies he appoints X as a mutawalli to succeed him. X cannot act as mutawalli because on the death of A, the mutawalli­ship passes to B and C, and A has no power to appoint X as a mutawalli.” (emphasis supplied)

The aforementioned illustration cited by Mulla is taken from the

decision of the  Privy  Council in  Haji Abdul Razaq  v.  Sheikh Ali

Baksh, (1947­48) 75  IA 172.  Abdul Razaq  was referred to by  the

Calcutta High Court in  its  decision  in  Commissioner of Wakfs  v.

Asraful Alam Shani and another, AIR 1975 Cal 162, which was in

turn relied upon by the High Court in the impugned judgment.  

Asraful Alam Shani  (supra) was a case similar to the present

case wherein  two persons were  appointed as  joint  mutawallis,  and

after the death of one, the surviving mutawalli claimed to be the sole

mutawalli. The High Court upon consideration of the terms of the waqf

deed in  Asraful Alam Shani  found that the intention of the waqifs

was that upon the death of any one of them, the survivor shall be the

sole mutawalli. Any person nominated by either of the mutawallis as

their successor during their lifetime could only assume the office when

both joint mutawallis died.  

9. From the above discussion it can be said that ordinarily, upon



the death of one of the joint mutawallis, the surviving mutawalli

becomes the sole mutawalli of the waqf property. In a case where there

are  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.  

Hence  in  the  present case, it  has  to be seen what scheme of

succession was laid down in the waqf deed dated 9.11.1936 (relevant

portion quoted supra). Upon perusal of the terms of the waqf deed, we

are of the considered opinion that the waqif  intended that after the

death of any of the original joint mutawallis, the survivor was required

to  nominate a person from the  waqif’s family line to succeed the


It is crucial to note that Clause 2 of the waqf deed dated

9.11.1936 provides that upon the death of either of the joint

mutawallis, the survivor shall be the sole mutawalli ‘for the time

being.’ (emphasis supplied) This differentiates the waqf deed from the

present waqf deed in  Asraful Alam Shani  (supra) where it was

simpliciter stated that upon the death of either of the joint mutawallis,



the survivor shall become the sole mutawalli. The phrasing of the waqf

deed dated 9.11.1936 indicates that the waqif intended that after the

death of either of the mutawallis, the survivor shall continue as the

sole mutawalli only for a temporary period. In the interim, the survivor

is required to nominate a competent successor to the deceased

mutawalli from the waqif’s family line, and thereafter, the said

successor shall have the right to nominate  his  successor (i.e.

successor’s successor) from the same source.  

Further, having regard to the fact that the waqf was constituted

of properties belonging to Md. Haji and Kammu Mia, it can be inferred

that the waqif intended that the succeeding mutawalli should be

nominated from the descendants of the deceased mutawalli. It is

unreasonable that the waqif would have wanted the surviving

mutawalli to continue as a sole mutawalli, and administer the

properties of the deceased in exclusion of the family members of the

deceased mutawalli, unless the family line of the deceased mutawalli

was to be exhausted.  

Our interpretation of the waqf deed in the above terms is

supported  by the order of the  Assam Wakf  Board  dated  4.3.1973

allowing Respondent No. 2’s claim to be appointed as joint mutawalli

together  with the  deceased  Kammu Mia. The  Wakf  Board strongly



condemned the deceased Kammu Mia for continuing as sole mutawalli

and observed that this indicated a desire on his part to misappropriate

the income of the waqf for his own family, to the exclusion of the other

descendants of the waqif.  

The aforesaid order of the Wakf Board has not been challenged

by the respondents in the present appeal at any point of time. We find

it difficult to understand how it can lie to Respondent No. 2 to seek

appointment as joint mutawalli after his father’s death as his father’s

heir and deny the same right to the descendants of his erstwhile co­

mutawalli Kammu Mia.  

10. Therefore, what remains to be decided is whether the appellant

can be construed as part of the ‘family line’ of the waqif Haji Elahi

Baksh as required under Clause 2 of the waqf deed.  It is relevant to

note that the issue  for  consideration before  us is  not  whether the

waqif’s daughter or a female descendant can be the mutawalli,  but

whether the offspring of the daughter can be considered for mutawalli­

ship. The High Court in the impugned judgment negatived this

contention in reliance upon the decision of the Calcutta High Court in

Md.  Eshaque  (supra). In  Md. Eshaque, the waqif  provided  for the

devolution of  mutawalli­ship in the  waqf deed as follows (relevant

portion): “Clause (a). —…the said office stall devolve till the passing of



ages (i.e. for ever)  and  repetition  of  months,  as  God  the merciful wills upon the offspring of my son (ba farzandani— farzandam) from generation to generation (Naslan baad naslin) womb after womb (batnam baad batnin)…

Clause (b).—But, whoever from among the male issue of my son and of the children (off spring) of my son, is learned and God fearing, and virtuous, and adorned with the ornament of truth and purity, and embellished with the qualities of fidelity and honesty and celebrated for, and qualified with laudable qualities and pleasing manners, shall be appointed to the office of the aforesaid ‘tawliat’.

Clause (d).—And, if from among the children of the Mutwalli, several persons are found to adorned and qualified with the aforesaid attributes, then the person who is senior­most in age among them be entitled to the ‘tawliat’, and, supposing they be equal in age, then one of them shall be entitled according to the advice of religions Musalmans and sober (i.e. pious) learned men, and so long as there exist male issue, the said office shall not be transferred to female issue.”

Clause (e).—“If  by  Divine  decree  the  male issues  become extinct, then it shall be transferred to the females, with the same aforesaid conditions as are applicable to the class of males and with the same…” (emphasis supplied)

In that case, the original mutawalli’s son died without any issue.

The question which arose for consideration was whether the son of the

mutawalli’s widowed daughter was competent to succeed as

mutawalli. The High Court, upon extensive consideration of the

opinions of Mohammedan jurists on this point, came to the conclusion

that the  Persian  word ‘farzand’  used in the  waqf  deed (the  Arabic

synonym of which is ‘aulad’) is legally understood to include both sons



and daughters in the  male line, but exclude any descendants, of

whatever gender, in the female line.  

Importantly, we find from a careful perusal of the decision, that

the High Court in Md. Eshaque (supra) did not rule as a matter of law

that mutawalli­ship can never devolve upon the descendants through

the female line. In the same decision, the High Court noted that in an

earlier decision of the Bombay High Court in  Sheikh Karimodin  v.

Nawab Mir Sayad Alam Khan,  10 Bom. 119., it was held that the

expression ‘ahfad’, if used in the waqf deed, would be wide enough to

cover descendants of the daughter as well.  The clauses of the waqf

deed in Md. Eshaque also expressly indicated that preference was to

be given to the male issue over the female issue.  

11. In an earlier decision of the Calcutta High Court in Wares Ali v.

Sheikh Shamsuddin, (1936) 63 Cal. L.J. 573, the High Court found

that since the waqif herself had appointed the son of a daughter as

mutawalli, the expression ‘legal heirs’ in the waqfnama must be taken

to  include  lineal  descendants  in both the male and  female  line. In

Syed Mahomed Ghouse  v.  Sayabarin Sahib  (deceased), AIR 1935

Mad 638, similar terms ‘batnam bad batnam’ and ‘naslan bad naslan’

were used in the waqf deed with regard to succession to mutawalli­

ship. The Madras High Court held, referring to the decision in Sheikh



Karimodin (supra) as follows: “The primary meaning of the words ‘Batnam bad

batnam’ seems to be generation after generation: see Wilson's Glossary and Durga Prasad's Arabic dictionary. It is contended by Mr. Rangachari, also by the Advocate for the sixth defendant, that these words exclude the cognate descendants. It seems to be so in the case of private grants. In the case of documents relating to private property, the words have now become words of limitation and as such they indicate absolute estate and in the case of absolute estate agnate heirs being residuaries exclude cognates  under the  Mahomedan law.  But  where these  words occur in  documents laying  down the line  of devolution for a religious office, such as the managership of a wakf, the above said consequence does not  necessarily follow. There the words generation after generation must be taken literally and we do not see any reason why at least in the case of descendants of a person claiming through females they should be excluded.  

It has been contended relying on Abdul Ganne Kasam v. Hussen Miya Rahimtula and Shah Ahmud Hossain v. Shah Mohiooddeen Ahmad that descendants through females should not be regarded as members of the family and must be regarded as strangers. The word ‘family’ itself is ambiguous. In this decision it is used in the sense of agnate heirs.  In a larger sense a man's descendants through females are equally members of his family and certainly under Muhammadan Law are heirs though they are remote heirs and they can come in by the use of the appropriate  words, for example, by the  use of the  word “Ahfad,” as in      Shekh Karimodin      v.      Nawab      Mir      Sayad      Alam      Khan.  

The passages relied on in the various text books no more than summarise the effect of these decisions and do not help us further. The word “Naslan” certainly includes all descendants: vide Tyabji's Muhammadan Law, S. 508 and “Naslan bad Naslan” indicates all descendants; That is how it was translated in Ali Muqtada Khan v. Abdul Hamid Khan. On the whole therefore we come to the conclusion that the words ‘batnam bad batnam’ in Ex. D and the words ‘naslan bad naslan’ in Ex. M are not intended to exclude the descendants through females. Baillie's Mahomedan Law,



page 579 does not indicate a contrary view. We have therefore to consider the relative merits of all the claimants including the descendants through females.” (emphasis supplied)

Accordingly, the High Court in  Syed Mahomed Ghouse (supra)

confirmed  the  subordinate court’s finding that the  son of  a female

descendant would be qualified to manage the waqf property.  

12. From the above discussion, we may conclude that it cannot be

said as a rule of law that cognatic heirs of the waqif have no right to

succeed to mutawalli­ship. As  Mulla  notes on page 90 and as

observed in  Fyzee’s  Outlines  of  Muhammedan  Law  (5th  edn.,  2008,

Prof.  Tahir  Mahmood ed.,  page 339),  daughter’s  children and  their

descendants are also included as descendants of the deceased under

Muslim law, though they are considered a more distant class of heirs

than agnatic heirs. Rather, as we have found in our earlier discussion

on the issue of succession to joint mutawalli­ship mentioned supra, it

is the interpretation of the waqf deed which is germane in each case.  

We may also refer, in this regard, to the recent decision of a two­

Judge Bench of this Court, comprising of myself and Rastogi J., where

we have held that in order to establish a claim of hereditary

succession to mutawalli­ship, the intention of the waqif, as manifested

either through the directions given in the waqf deed or the creation of

a custom, is of paramount importance (See  Aliyathammuda



Beethathebiyyappura Pookoya & Ors. v. Pattakal Cheriyakoya &

Ors., C.A. No. 9586/2010, judgment dated August 1, 2019). We are of

the considered opinion that this principle also applies in determining

which class of heirs is included or excluded from mutawalli­ship.  

Therefore it has to be seen whether in the present case, having

regard to the terms of the waqf deed, the waqif intended to exclude his

descendants through the female line from mutawalli­ship of the waqf.

In the present case, Kammu Mia was the husband of the daughter of

the waqif Haji Elahi Baksh. Therefore Kammu Mia’s descendants

would naturally be Haji Elahi Baksh’s descendants through the female

line, and the waqif must have been aware of this while drafting the

waqf deed. If the waqif had intended to exclude his descendants

through the female line from succession to mutawalli­ship, he would

have expressly stated that after the death of either the original joint

mutawallis, only Md. Shafi’s descendants would be eligible to succeed

to  mutawalli­ship.  However, the  waqf  deed dated 9.11.1936 clearly

provides that either of the surviving mutawallis may nominate a

successor as he thinks fit and that if mutawalli does not nominate a

successor, the senior most member amongst the lineal descendants of

either  Md. Shafi or Kammu Mia would be competent to hold

mutawalli­ship, without any preference given to Md. Shafi’s




Hence it is clear that the  waqif  not only included the  direct

descendants of his son but also his descendants through the female

line, which includes Kammu Mia’s daughter’s descendants, as part of

his ‘family line.’ The High Court’s finding that the waqif intended that

the mutawalli­ship should devolve upon Kammu Mia’s descendants

only after the waqif’s direct lineal descendants are exhausted is

patently incorrect in as much as the waqf deed does not contain any

such stipulation.  

13. However, having regard to the fact that there may be several such

descendants in the female line who are vying for mutawalli­ship, we do

not wish to make a specific finding in regard to whether the appellant

is entitled to the said office. Section 63 of the 1995 Act is useful to

refer to at this juncture:

“63. Power to appoint mutawallis in certain cases.— When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.”

In the present case, since Respondent No. 2 has shown a

disinclination to nominate a successor to the deceased Kammu Mia,

as provided for under the terms of the waqf deed, we direct



Respondent No. 1 to appoint a competent person from amongst the

said Kammu Mia’s descendants, as it thinks fit,  to succeed to joint

mutawalli­ship. This is provided that the said successor shall

thereafter have the right to nominate his successor, per Clause 3 of

the waqf deed. We also direct that the said successor shall, in the

event of the death of Respondent No. 2, nominate a successor from

Respondent No. 2’s family line, which includes descendants through

the female line, so as to avoid any further dispute in this regard.  

14. The  appeal is  allowed  in the  above terms,  and the impugned

judgment is set aside.

..........................................J. (N.V. Ramana)

..........................................J. (Mohan M. Shantanagoudar)

New Delhi;          .........................................J. September 26, 2019.                                           (Ajay Rastogi)